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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
--------------------
Date of Report (Date of earliest event reported): November 26, 1996
USX CORPORATION
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(Exact name of registration as specified in its charter)
DELAWARE 1-5153 25-0996816
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
600 Grant Street, Pittsburgh, PA 15219-4776
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(Address of principal executive offices) (Zip Code)
(412) 433-1121
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(Registrant's telephone number,
including area code)
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ITEM 5. OTHER EVENTS.
On November 26, 1996, the Corporation executed an Underwriting
Agreement with Salomon Brothers Inc and Lehman Brothers Inc. in connection with
the issuance of 6 3/4% Exchangeable Notes Due February 1, 2000 (the "DECS")
pursuant to a shelf registration statement on Form S-3, File No. 33-52937.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
1.) Underwriting Agreement dated November 26, 1996.
4.1) Reports of Terms and Rate Committees and the Special
Committee establishing the terms and conditions of
the DECS.
4.2) First Supplemental Indenture, dated as of December 3,
1996 (Supplement to Indenture dated as of March 15,
1993).
23.3) Consent of Miller & Chevalier, Chartered, to being
named as Tax Counsel in the Prospectus Supplement
relating to the DECS.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
USX CORPORATION
By /s/ LEWIS B. JONES
------------------
Lewis B. Jones
Vice President & Comptroller
Dated: November 26, 1996
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- -----------
<S> <C>
1. Underwriting Agreement dated November 26, 1996.
4.1 Reports of Terms and Rate Committees and the Special
Committee establishing the terms and conditions of
the DECS.
4.2 First Supplemental Indenture, dated as of December 3,
1996 (Supplement to Indenture dated as of March 15,
1993).
23.3 Consent of Miller & Chevalier, Chartered, to being
named as Tax Counsel in the Prospectus Supplement
relating to the DECS.
</TABLE>
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Exhibit 1.
USX CORPORATION
5,000,000 DECS(SM) (Debt Exchangeable for Common Stock(SM))*
6 3/4% Exchangeable Notes Due February 1, 2000
(Subject to Exchange into Shares of Common Stock,
par value $.01 per share, of RMI Titanium Company)
Underwriting Agreement
New York, New York
November 26, 1996
Salomon Brothers Inc
Lehman Brothers Inc.
as Representatives of the several Underwriters
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
USX Corporation, a Delaware corporation ("USX"), proposes to
sell to the underwriters named in Schedule I hereto (the "Underwriters"), for
whom you (the "Representatives") are acting as representatives, an aggregate of
5,000,000 DECS (Debt Exchangeable for Common Stock) consisting of its 6 3/4%
Exchangeable Notes Due February 1, 2000 (the "Underwritten DECS"), to be issued
under an indenture dated as of March 15, 1993, between USX and PNC Bank,
National Association, as trustee (the "Trustee"), as amended by the First
Supplemental Indenture thereto dated as of December 3, 1996 (as so amended, the
"Indenture"). In addition, the Underwriters will have an option to purchase up
to 483,600 DECS (the "Option DECS" and, together with the Underwritten DECS,
the "DECS"). At maturity (including as a result of acceleration or otherwise),
the DECS will be mandatorily exchanged by USX into shares of common stock, par
value $.01 per share (the "RMI Common Stock"), of RMI Titanium Company, an Ohio
corporation ("RMI") (or, at USX's option under the circumstances described in
the Final USX Prospectus (as defined herein), cash with an equal value) at the
rate specified in the Final USX Prospectus.
In connection with the foregoing and pursuant to the
Registration Rights Agreement dated August 21, 1996, between RMI Titanium
Company and USX Corporation (the "Registration
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* Plus an option to purchase from USX Corporation, up to 483,600
additional DECS to cover over-allotments.
<PAGE> 2
Rights Agreement"), RMI has filed with the Securities and Exchange Commission
(the "Commission") a registration statement with respect to 5,000,000 shares
(the "Underwritten Shares") of RMI Common Stock, in respect of the Underwritten
DECS plus an additional 483,600 shares (the "Option Shares" and, together with
the Underwritten Shares, the "Shares") of RMI Common Stock in respect of the
Option DECS, for sale by USX as a selling stockholder (to the extent USX shall
so elect to deliver RMI Common Stock to holders of the DECS at maturity thereof
pursuant to the terms of the DECS), which registration statement is referred to
in Section 2 of this Agreement.
Certain terms used in this Agreement are defined in paragraph
(c) of Section 1 and paragraph (c) of Section 2.
1. Representations and Warranties of USX. USX represents and
warrants to, and agrees with, each Underwriter and RMI as set forth below in
this Section 1.
(a) USX meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Commission a registration statement (file number 33-52937) on Form
S-3, including a basic prospectus (the "Basic USX Prospectus"), for
the registration under the Act of the offering and sale of the DECS.
USX may have filed one or more amendments thereto, and may have used a
Preliminary Final USX Prospectus (as defined herein), each of which
has previously been furnished to you. Such registration statement, as
so amended, has become effective. Although the Basic Prospectus may
not include all the information with respect to the DECS and the
offering thereof required by the Act and the rules thereunder to be
included in the Final USX Prospectus, the Basic USX Prospectus
includes all such information required by the Act and the rules
thereunder with respect to such a prospectus. A Preliminary Final USX
Prospectus has been filed with the Commission pursuant to Rule
424(b)(2). USX will next file with the Commission pursuant to Rule
424(b)(2) a final supplement to the Basic USX Prospectus, which
supplement relates to the DECS and the offering thereof. As filed,
such final prospectus supplement shall include all required
information with respect to the DECS 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 USX Prospectus and any Preliminary Final USX Prospectus) as USX
has advised you, prior to the Execution Time, will be included or made
therein. The registration statement, at the Execution Time, will meet
the requirement set forth in Rule 415(a)(1)(x) under the Act.
(b) On the USX Effective Date, the USX Registration Statement
did and/or will, and when the Final USX Prospectus is first filed in
accordance with Rule 424(b) and on the Closing Date, the Final USX
Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
respective rules thereunder; on the USX Effective Date, the USX
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; on the USX Effective Date and on
the Closing Date, the Indenture did or will comply in all material
respects with the applicable requirements of the Trust Indenture Act
and the rules thereunder; and, on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Final USX Prospectus
(together with any supplement
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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 therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that USX makes no
representations or warranties as to (A) that part of the USX
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee, (B) the information contained in or omitted from the
USX Registration Statement or the Final USX Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to USX by or on behalf of any
Underwriter through the Representatives specifically for inclusion in
the USX Registration Statement or the Final USX Prospectus (or any
supplement thereto) or (C) the information contained in or omitted
from the USX Registration Statement or the Final USX Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to USX by or on behalf of RMI
specifically for inclusion in the USX Registration Statement or the
Final USX Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "USX Effective Date" shall
mean each date that the USX Registration Statement and any
post-effective amendment or amendments thereto became or become
effective and the date of filing of USX's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995. "Execution Time" shall
mean the date and time that this Agreement is executed and delivered
by the parties hereto. "Basic USX Prospectus" shall mean the
prospectus referred to in paragraph (a) of this Section 1 contained in
the USX Registration Statement at the USX Effective Date. "Preliminary
Final USX Prospectus" shall mean any preliminary prospectus supplement
to the Basic USX Prospectus which describes the DECS and the offering
thereof, is used prior to filing the Final USX Prospectus and is
filed, together with the Basic USX Prospectus, pursuant to Rule
424(b). "Final USX Prospectus" shall mean the Basic USX Prospectus as
supplemented by the prospectus supplement relating to the DECS that is
first filed pursuant to Rule 424(b) after the Execution Time. "USX
Registration Statement" shall mean the registration statement referred
to in paragraph (a) of this Section 1, including incorporated
documents, exhibits and financial statements, as amended at the
Execution Time and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended. "Rule 415," "Rule 424" and
"Regulation S-K" refer to such rules or regulation under the Act. Any
reference herein to the USX Registration Statement, the Basic USX
Prospectus, any Preliminary Final USX Prospectus or the Final USX
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the USX Effective
Date or the issue date of the Basic USX Prospectus, any Preliminary
Final USX Prospectus or the Final USX Prospectus, as the case may be;
and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the USX Registration Statement, the Basic
USX Prospectus, any Preliminary Final USX Prospectus or the Final USX
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the USX Effective Date, or the
issue date of the Basic USX Prospectus, any Preliminary Final USX
Prospectus or the Final USX Prospectus, as the case may be, which
document is deemed to be incorporated therein by reference.
(d) To the extent that any statements or omissions made in
the RMI Registration Statement or the RMI Prospectus (or any
supplement thereto) are made in reliance upon and in conformity with
written information furnished to RMI by USX specifically for inclusion
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therein, (i) on the RMI Effective Date, the RMI 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
(ii) on the RMI Effective Date, the RMI 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 (as defined in
Section 4 hereof), the RMI 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 therein, in the light of the circumstances under which they
were made, not misleading; and no facts have come to the attention of
USX which lead USX to believe, or should lead it to believe, that (i)
on the RMI Effective Date, the RMI 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 (ii) on the
RMI Effective Date, the RMI 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 RMI 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 therein, in the light of the circumstances under
which they were made, not misleading.
(e) USX has not taken and will not take, directly or
indirectly, any action designed to or which has constituted 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 RMI to facilitate the sale or resale of the DECS or the
Shares, and has not effected any sales of RMI Common Stock (other than
sales of RMI Common Stock prior to May 1996 pursuant to Rule 144 under
the Act) which, if effected by the issuer, would be required to be
disclosed in response to Item 701 of Regulation S-K.
(f) Neither USX nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the USX Registration Statement any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree,
otherwise than as set forth in or contemplated by the USX Registration
Statement or the Final USX Prospectus; and, since the respective dates
as of which information is given in the USX Registration Statement,
there has not been any material change in the capital stock or
long-term debt of USX or any of its subsidiaries or any material
adverse change, or any development likely to result in a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of USX and its subsidiaries, otherwise than as set forth in
or contemplated by the Final USX Prospectus.
(g) USX has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Delaware, with all corporate power and authority to own its properties
and conduct its business as described in the USX Registration
Statement and the Preliminary Final USX Prospectus.
(h) USX has an authorized capitalization as set forth in the
USX Registration Statement and the Preliminary Final USX Prospectus,
and all of the issued shares of capital stock of USX have been duly
and validly authorized and issued and are fully paid and
non-assessable;
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(i) The DECS have been duly authorized, and, when the DECS
are issued and delivered pursuant to this Agreement, such DECS will
have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of USX entitled to
the benefits provided by the Indenture, which will be substantially in
the form filed as an exhibit to the USX Registration Statement, the
Indenture has been duly authorized and duly qualified under the Trust
Indenture Act and, on the Closing Date (as defined in Section 4
hereof), the Indenture will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles; and the Indenture conforms, and the
DECS will conform, to the descriptions thereof contained in the Final
USX Prospectus.
(j) The issue and sale of the DECS and the compliance by USX
with all of the provisions of the DECS, the Indenture and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which USX is a party or by which USX is
bound or to which any of the property or assets of USX is subject, nor
will such action result in any violation of the provisions of the
certificate of incorporation or by-laws of USX or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over USX or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
issue and sale of the DECS or the consummation by USX of the
transactions contemplated by this Agreement or the Indenture, except
such as have been, or will have been prior to the Closing Date,
obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the DECS by the Underwriters.
(k) Other than as set forth in the USX Registration Statement
and the Preliminary Final USX Prospectus, there are no legal or
governmental proceedings pending to which USX or any of its
subsidiaries is a party or of which any property of USX or any of its
subsidiaries is the subject which, if determined adversely to USX or
any of its subsidiaries, would have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of USX and its subsidiaries; and, to the best of USX's
knowledge, no such proceedings are threatened by governmental
authorities or by others.
(l) Immediately prior to any delivery of Shares or any
Reported Securities (as defined in the Final USX Prospectus) pursuant
to the DECS, USX will be the lawful owner of such Shares or Reported
Securities, as the case may be, and will convey good and valid title
to such Shares or Reported Securities, as the case may be, upon such
delivery, free and clear of all liens, encumbrances, equities and
claims whatsoever.
2. Representations and Warranties of RMI. RMI represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 2.
(a) RMI meets the requirements for use of Form S-3 under the
Act and has filed with the Commission a registration statement (file
number 333-16101) on such Form, including a
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related preliminary prospectus, for the registration under the Act of
the offering and sale of the Shares. RMI may have filed one or more
amendments thereto, including the related preliminary prospectus, each
of which has previously been furnished to you. RMI will next file with
the Commission one of the following: (i) prior to effectiveness of
such registration statement, a further amendment to such registration
statement, including the form of final prospectus or (ii) a final
prospectus in accordance with Rules 430A and 424(b)(1) or (4). In the
case of clause (ii), RMI has included in such registration statement,
as amended at the RMI Effective Date, all information (other than Rule
430A Information) required by the Act and the rules thereunder to be
included in the RMI Prospectus with respect to the Shares and the
offering thereof. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, with
respect to the Shares and the offering thereof and, except to the
extent the Representatives shall agree to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest
Preliminary RMI Prospectus) as RMI has advised you, prior to the
Execution Time, will be included or made therein.
(b) (i) On the RMI Effective Date, the RMI Registration
Statement did or will and when the RMI Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date, the
RMI Prospectus (and any supplement thereto) will, conform in all
material respects with the applicable requirements of the Act, the
Exchange Act and the respective rules thereunder;
(ii) On the RMI Effective Date, the RMI 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; on the RMI Effective Date, the RMI 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 RMI
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 therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that no representation or warranty is made as to
the information contained in or omitted from the RMI Registration
Statement or the RMI Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing
to RMI (A) by or on behalf of any Underwriter through the
Representatives or (B) by USX, in either case, specifically for
inclusion in the RMI Registration Statement or the RMI Prospectus (or
any supplement thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "RMI Effective Date" shall
mean each date that the RMI Registration Statement and any
post-effective amendment or amendments thereto became or become
effective. "Preliminary RMI Prospectus" shall mean any preliminary
prospectus referred to in paragraph (a) of this Section 2 and any
preliminary prospectus included in the RMI Registration Statement at
the RMI Effective Date that omits Rule 430A Information. "RMI
Prospectus" shall mean the prospectus relating to the Shares that is
first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of
final prospectus relating to the Shares included in the RMI
Registration Statement at the RMI Effective Date. "RMI Registration
Statement" shall mean the registration statement
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referred to in paragraph (a) of this Section 2 including incorporated
documents, 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 becomes effective prior to the
Closing Date, shall also mean such registration statement as so
amended. Such term shall include any Rule 430A Information deemed to
be included therein at the RMI Effective Date as provided by Rule
430A. "Rule 430A" refers to such rule under the Act. "Rule 430A
Information" means information with respect to the DECS (or the
Shares) and the offering thereof permitted to be omitted from the RMI
Registration Statement when it becomes effective pursuant to Rule
430A. Any reference herein to the RMI Registration Statement,
Preliminary RMI Prospectus or the RMI Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange
Act on or before the RMI Effective Date or the issue date of a
Preliminary RMI Prospectus or the RMI Prospectus, as the case may be;
and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the RMI Registration Statement, any
Preliminary RMI Prospectus or the RMI Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the RMI Effective Date, or the issue date of any Preliminary RMI
Prospectus or the RMI Prospectus, as the case may be, deemed to be
incorporated therein by reference. The term "RMI Material Adverse
Effect" shall mean any material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business or prospects of RMI and its subsidiaries taken as a whole.
(d) RMI and each of its subsidiaries (as defined in Rule 405
under the Act) have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the conduct
of their respective businesses requires such qualification (other than
those jurisdictions in which the failure to so qualify would not
reasonably be expected to have a material adverse effect on RMI or RMI
and its subsidiaries taken as a whole), and have all power and
authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged; and none of the
subsidiaries of RMI is a "significant subsidiary", as such term is
defined in Rule 405 under the Act.
(e) RMI has an authorized capitalization as set forth in the
RMI Prospectus, and all of the issued shares of capital stock of RMI
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the
RMI Prospectus; and all of the issued shares of capital stock of each
subsidiary of RMI have been duly and validly authorized and issued and
are fully paid and non-assessable and are owned directly or indirectly
by RMI, free and clear of all liens, encumbrances, equities or claims;
provided, however, that the Company only owns a 40% interest in
Reamet, S.A.
(f) This Agreement has been duly authorized, executed and
delivered by RMI.
(g) The execution, delivery and performance of this Agreement
by RMI and the consummation of the transactions contemplated hereby
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which RMI or any of its subsidiaries is a party or by
which RMI or any of its subsidiaries is bound or to which any of the
properties or assets of RMI or any of its subsidiaries is subject and
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which is material to RMI and its subsidiaries taken as a whole, nor
will such actions result in any violation of the provisions of the
Amended Articles of Incorporation or Amended Code of Regulations of
RMI or the charter or by-laws of any of its subsidiaries or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over RMI or any of its subsidiaries
or any of their properties or assets; and except for the registration
of the Shares under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state or foreign securities laws
in connection with the purchase and distribution of the DECS (and the
related offering of the Shares) by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement by RMI and the
consummation of the transactions contemplated hereby.
(h) Neither RMI nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the RMI Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which was
material to RMI and its subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the RMI Prospectus; and, since such
date, there has not been any change in the capital stock (other than
the grant and exercise of options pursuant to RMI's stock option plans
and the issuance of shares of RMI Common Stock on May 7, 1996 in
connection a registered public offering thereof) or changes in
long-term debt (other than under RMI's Amended and Restated Bank
Credit Agreement, dated May 3, 1995, and the Credit Facility (as
defined in the RMI Prospectus)) of RMI or any of its subsidiaries or
any material adverse change in the consolidated financial position,
stockholders' equity, results of operations, business or prospects of
RMI and its subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(i) Except as described in the RMI Prospectus, there are no
legal or governmental proceedings pending to which RMI or any of its
subsidiaries is a party or of which any property or asset of RMI or
any of its subsidiaries is the subject which, if determined adversely
to RMI or any of its subsidiaries, could reasonably be expected to
have a RMI Material Adverse Effect; and to the best of RMI's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(j) RMI is not and, after giving effect to the offering and
sale of the DECS and the Shares, will not be, an "investment company"
or an entity "controlled" by an "investment company," as such terms
are defined in the Investment Company Act.
(k) Except as described in the RMI Prospectus, there has been
no storage, disposal, generation, manufacture, refinement,
transportation, handling, treatment, discharge, emission, or any other
release of toxic wastes, medical wastes, hazardous wastes or hazardous
substances by RMI or any of its subsidiaries (or, to the knowledge of
RMI, any of their predecessors in interest or any other entity for
whose acts or omissions RMI or any subsidiary is or may be liable) at,
upon or from any of the properties now or previously owned or leased
by RMI or its subsidiaries, or, to the knowledge of RMI, at, upon or
from any other properties, in violation of any applicable law,
ordinance, rule (including, without limitation, the rule of common
law), regulation, order, judgment, decree or permit or which would
give rise to any liability under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for
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any violation or liability which would not have, or could not be
reasonably likely to have, singularly or in the aggregate with all
such violations and remedial actions, a RMI Material Adverse Effect;
except as disclosed in the RMI Prospectus, there has been no material
spill, discharge, leak, emission, injection, escape, dumping or
release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, medical wastes, solid
wastes, hazardous wastes, hazardous substances or other substances,
with respect to which RMI or any of its subsidiaries have knowledge,
except for any such spill, discharge, leak, emission, injection,
escape, dumping or release which would not have or would not be
reasonably likely to have, singularly or in the aggregate with all
such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a RMI Material Adverse Effect; and the terms
"hazardous wastes", "toxic wastes", "hazardous substances" and
"medical wastes" shall have the meanings specified in any applicable
local, state, federal and foreign laws or regulations with respect to
environmental protection.
(l) RMI and each of its subsidiaries have good and sufficient
title in fee simple to all real property and good and sufficient title
to all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except those that (i) are
described in the Prospectus, (ii) exist as a result of the Credit
Facility, or (iii) do not materially affect the value of such property
and do not materially interfere with the use made or proposed to be
made of such property by RMI and its subsidiaries; and all real
property and buildings held under lease by RMI and its subsidiaries
are held by them under valid, existing and enforceable leases, with
such exceptions as are not material and do not interfere with the use
made or proposed to be made of such property and buildings by RMI and
its subsidiaries.
(m) Except for the Registration Rights Agreement, there are
no contracts, agreements or understandings between RMI and any person
granting such person the right to require RMI to file a registration
statement under the Act with respect to any securities of RMI owned or
to be owned by such person or to require RMI to include such
securities in the securities registered pursuant to the RMI
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by RMI under the Act.
(n) Neither RMI nor any of its subsidiaries (i) is in
violation of its charter or by-laws in any material respect, (ii) is
in default in any material respect, and no event has occurred which,
with notice or lapse of time or both, would constitute such a default,
in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is
a party or by which it is bound or to which any of its properties or
assets is subject or (iii) is in violation in any material respect of
any law, ordinance, governmental rule, regulation or court decree to
which it or its properties or assets may be subject or has failed to
obtain any material license, permit, certificate, franchise or other
governmental authorization or permit ("Permit") necessary to the
ownership of its properties or assets or to the conduct of its
business, or has received notice of any attempt to revoke or modify
any such Permit, or has any reason to believe that any such Permit
will not be granted or renewed.
(o) RMI and each of its subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is, in the
reasonable judgment of RMI, adequate for the conduct of their
respective businesses and the value of their respective properties.
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(p) Price Waterhouse L.L.P. are independent public
accountants with respect to RMI as required by the Act and the rules
and regulations thereunder.
(q) The financial statements, together with the notes
thereto, included or incorporated in the RMI Registration Statement
and the RMI Prospectus (and any amendment or supplement thereto),
present fairly the consolidated financial position, results of
operations and changes in financial position of RMI on the basis
stated in the RMI Registration Statement at the respective dates or
for the respective periods to which they apply; such statements and
the related notes thereto have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved except as noted therein.
(r) No material labor dispute with the employees of RMI
exists, except as described in or contemplated by the RMI Prospectus,
or, to the knowledge of RMI, is imminent; and RMI is not aware of any
existing, threatened or imminent labor disturbance by the employees of
any of its principal suppliers, manufacturers, or contractors that
could have a RMI Material Adverse Effect.
(s) RMI is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which RMI would have any liability; RMI has
not incurred and does not expect to incur liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue
Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for
which RMI would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to
act, which would cause the loss of such qualification.
(t) RMI has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and
has paid all taxes due thereon, and no tax deficiency has been
determined adversely to RMI or any of its subsidiaries which has had
(nor does RMI have any knowledge of any tax deficiency which, if
determined adversely to RMI or any of its subsidiaries, might have) a
RMI Material Adverse Effect.
(u) RMI has not taken and will not take, directly or
indirectly, any action designed to or which has constituted 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 RMI to facilitate the sale or resale of the DECS or the
Shares.
(v) The outstanding shares of RMI Common Stock are duly
listed and admitted for trading on the New York Stock Exchange (the
"NYSE").
3. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, USX
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from USX, at a price of $20.735 per DECS, the number
of DECS set forth opposite such Underwriter's name in Schedule I hereto. The
initial
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public offering price of the DECS, as described on the cover of the Final USX
Prospectus, will be $21.375 per DECS.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, USX hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up
to 483,600 of the Option DECS at the same purchase price per DECS as the
Underwriters shall pay for the Underwritten DECS. Said option may be exercised
only to cover over-allotments in the sale of the Underwritten DECS by the
Underwriters. Said option may be exercised in whole or in part at any time (but
not more than once) on or before the 30th day after the date of the Final USX
Prospectus upon written or telegraphic notice by the Representatives to USX
setting forth the number of the Option DECS as to which the several
Underwriters are exercising the option and the settlement date. Delivery of
certificates for the Option DECS, and payment therefor, shall be made as
provided in Section 4 hereof. The number of Option DECS to be purchased by each
Underwriter shall be the same percentage of the total number of Option DECS to
be purchased by the several Underwriters as such Underwriter is purchasing of
the Underwritten DECS, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional DECS.
4. Delivery and Payment. Delivery of and payment for the
Underwritten DECS and the Option DECS (if the option provided for in Section
3(b) hereof shall have been exercised on or before the first business day prior
to the Closing Date) shall be made at 10:00 AM, New York City time, on December
3, 1996, (or such later date not later than five business days after such
specified date as the Representatives shall designate) which date and time may
be postponed by agreement between the Representatives and USX or as provided in
Section 11 hereof (such date and time of delivery and payment for the DECS
being herein called the "Closing Date"). Delivery of the DECS 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 USX by wire transfer to an account designated in
writing by USX at least two business days in advance of the Closing Date,
payable in same-day funds. Delivery of the DECS 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 such DECS shall be made at the
office of Simpson Thacher & Bartlett, 425 Lexington Avenue, New York, New York.
Certificates for the DECS shall be registered in such names and in such
denominations as the Representatives may request not less than one full
business day in advance of the Closing Date.
USX agrees to have the DECS available for inspection, and
checking by the Representatives in New York, New York, not later than 1:00 PM
on the business day prior to the Closing Date.
If the option provided for in Section 3(b) hereof is
exercised after the first business day prior to the Closing Date, USX will
deliver (at the expense of USX) to the Representatives at the office of Simpson
Thacher & Bartlett, New York, New York, on the date specified by the
Representatives (which shall be within three business days after exercise of
said option), certificates for the Option DECS in such names and denominations
the Representatives shall have requested against payment of the purchase price
thereof to or upon the order of USX either by certified or official bank check
or checks drawn on or by a New York Clearing House bank or by wire transfer to
an account designated in writing by USX at least two business days in advance
of the Closing Date, and in either case payable in same-day funds. If
settlement for the Option DECS occurs after the Closing Date, USX and RMI will
deliver to the Representatives on the settlement date for the Option DECS, and
the obligation of the Underwriters to purchase the Option DECS shall be
conditioned upon
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receipt of, supplemental opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the Closing Date
pursuant to Section 7 hereof.
5. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the DECS for sale to the public as set
forth in the Final USX Prospectus.
6. Agreements of USX. USX agrees with each Underwriter that:
(a) USX will use its best efforts to cause any amendment to
the USX Registration Statement, if not effective at the Execution
Time, to become effective. Prior to the termination of the offering of
the DECS, USX will not file any amendment to the USX Registration
Statement or supplement (including the Final USX Prospectus or any
Preliminary Final USX Prospectus) to the Basic USX Prospectus unless
USX has furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which you
reasonably object, unless, in the reasonable judgment of USX and its
counsel, such amendment or supplement is necessary to comply with
applicable law, in which case USX will permit you a reasonable
opportunity to comment thereon. Subject to the foregoing sentence, USX
will cause the Final USX 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. USX will promptly advise the Representatives (A) when
any amendment to the USX Registration Statement, if not effective at
the Execution Time, shall have become effective, (B) when the Final
USX Prospectus, and any supplement thereto, shall have been filed with
the Commission pursuant to Rule 424(b), (C) when, prior to termination
of the offering of the DECS, any amendment to the USX Registration
Statement shall have been filed or become effective, (D) of any
request by the Commission for any amendment of the USX Registration
Statement or supplement to the Final USX Prospectus or for any
additional information, (E) of the issuance by the Commission of any
stop order suspending the effectiveness of the USX Registration
Statement or the institution or threatening of any proceeding for that
purpose and (F) of the receipt by USX of any notification with respect
to the suspension of the qualification of the DECS for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. USX will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the DECS is
required to be delivered under the Act, any event occurs as a result
of which the Final USX 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 USX Registration Statement or
supplement the Final USX Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, USX promptly will
prepare and file with the Commission, subject to the second sentence
of paragraph (a) of this Section 6, an amendment or supplement which
will correct such statement or omission or effect such compliance.
(c) As soon as practicable, USX will make generally available
to its security holders and to the Representatives an earnings
statement or statements of USX and its subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and, at the option of USX,
Rule 158 under the Act.
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(d) USX will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the USX
Registration Statement (including exhibits thereto); and to each other
Underwriter a copy of the USX Registration Statement (without exhibits
thereto). USX will furnish to the Underwriters not later than (A) 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 12:00
Noon, New York City time, on such date or (B) 6:00 PM, New York City
time, on the business day following the date on which the public
offering price was determined, if such determination occurred after
12:00 Noon, New York City time, on such date, as many copies of the
Final USX Prospectus and any supplement thereto as the Representatives
may reasonably request; further, so long as delivery of a prospectus
by an Underwriter or any dealer may be required by the Act, as many
copies of each Preliminary Final USX Prospectus and the Final USX
Prospectus and any supplement thereto as the Representatives may
reasonably request. USX will pay the expenses of printing or other
production of the USX Registration Statement, each Preliminary Final
USX Prospectus and the Final USX Prospectus.
(e) USX will arrange for the qualification of the DECS and
the Shares for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the DECS and the
Shares; provided, however, that in connection therewith USX shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction.
(f) USX will not, for a period of 90 days following the
Execution Time, without the prior written consent of the
Representatives, offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, or announce the
offering of, any shares of RMI Common Stock or any securities
convertible into or exercisable or exchangeable for shares of RMI
Common Stock or (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic
consequences of the ownership of shares of RMI Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be
settled by delivery of shares of RMI Common Stock or such other
securities, in cash or otherwise.
(g) Until the Closing Date, USX 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 debt securities issued or guaranteed by USX which
mature more than one year after the Closing Date, other than debt
securities in an aggregate principal amount not to exceed $100
million.
7. Agreements of RMI. RMI agrees with the several
Underwriters that:
(a) RMI will use its best efforts to cause the RMI
Registration Statement, if not effective at the Execution Time, and
any amendment thereof to become effective. Prior to the termination of
the offering of the DECS, RMI will not file any amendment of the RMI
Registration Statement or supplement to the RMI Prospectus unless RMI
has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably
object, unless in the reasonable judgment of RMI and its counsel, such
amendment or supplement is necessary to comply with applicable law, in
which case RMI will permit you a reasonable opportunity to comment
thereon. Subject to the
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foregoing sentence, if the RMI Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the RMI
Prospectus is otherwise required under Rule 424(b), RMI will cause the
RMI 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. RMI will
promptly advise the Representatives (A) when the RMI Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, shall have become effective, (B) when the RMI Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b), (C) when, prior to termination of
the offering of the Shares, any amendment to the RMI Registration
Statement shall have been filed or become effective, (D) if any
request by the Commission for any amendment of the RMI Registration
Statement or supplement to the RMI Prospectus or for any additional
information, (E) of the issuance by the Commission of any stop order
suspending the effectiveness of the RMI Registration Statement or the
institution or threatening of any proceeding for that purpose and (F)
of the receipt by RMI of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. RMI will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the DECS is
required to be delivered under the Act, any event occurs as a result
of which the RMI 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 RMI Registration Statement or
supplement the RMI Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, RMI promptly will prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 7, an amendment or supplement which will correct
such statement or omission or effect such compliance.
(c) As soon as practicable, RMI will make generally available
to its security holders and to the Representatives an earnings
statement or statements of RMI and its subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and, at the option of RMI,
Rule 158 under the Act.
(d) RMI will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the RMI
Registration Statement (including exhibits thereto). RMI will furnish
to the Underwriters not later than (A) 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 12:00 Noon, New York City time,
on such date or (B) 6:00 PM, New York City time, on the business day
following the date on which the public offering price was determined,
if such determination occurred after 12:00 Noon, New York City time,
on such date, as many copies of each Preliminary RMI Prospectus, the
RMI Prospectus and any supplement thereto as you may reasonably
request; further, so long as delivery of a prospectus by the
Underwriter or dealer may be required by the Act, as many copies of
each Preliminary RMI Prospectus and the RMI Prospectus and any
supplement thereto as the Representatives may reasonably request. USX
will bear the cost of printing or other production of the RMI
Registration Statement, the Preliminary RMI Prospectus and the RMI
Prospectus.
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(e) RMI will cooperate with USX for purposes of the
qualification of the DECS and the Shares for sale under the laws of
such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the
distribution of the DECS and the Shares; provided that in no event
shall RMI be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would
subject it to general service of process in any jurisdiction where it
is not now so subject..
(f) RMI will not, for a period of 90 days following the
Execution Time, without the prior written consent of the
Representatives, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, or announce the
offering of, any shares of RMI Common Stock or any securities
convertible into or exercisable or exchangeable for shares of RMI
Common Stock or (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic
consequences of the ownership of shares of RMI Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be
settled by delivery of shares of RMI Common Stock or such other
securities, in cash or otherwise; provided, however, that RMI may
issue, or grant options for, RMI Common Stock pursuant to any stock
plan for employees and directors, or any qualified employee benefit
plan, in effect at the Execution Time, or pursuant to any stock
options outstanding at the Execution Time, and any qualified employee
benefit plan in effect at the Execution Time may sell RMI Common Stock
to satisfy plan liquidity needs.
(g) RMI will take such actions as may be reasonably necessary
to comply with the rules and regulations of the NYSE in respect of the
offering of the Shares contemplated hereby.
8. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the DECS shall be subject to the
accuracy of the representations and warranties on the part of USX and RMI
contained herein as of the Execution Time, the Closing Date and any settlement
date pursuant to Section 4 hereof, to the accuracy of the statements of USX and
RMI made in any certificates pursuant to the provisions hereof, to the
performance by USX and RMI of their respective obligations hereunder and to the
following additional conditions:
(a) If the RMI Registration Statement has not become
effective prior to the Execution Time, unless the Representatives agree in
writing to a later time, the RMI 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, New York City time, 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 USX Prospectus or the RMI Prospectus, or
any supplements thereto, is required pursuant to Rule 424(b), such Final USX
Prospectus or RMI Prospectus, and any such supplements, will be filed in the
manner and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the USX Registration Statement or the RMI
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) USX shall have furnished to the Representatives the
opinion of D.D. Sandman, Esq., General Counsel & Senior Vice President -- Human
Resources and Secretary of USX or J.A.
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Hammerschmidt, Esq., Assistant General Counsel and Assistant Secretary of USX,
dated the Closing Date, to the effect that:
(i) USX has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Delaware, with all corporate power and authority to own its properties
and conduct its business as described in the Final USX Prospectus;
(ii) USX has an authorized capitalization as set forth in the
Final USX Prospectus and all of the issued shares of capital stock of
USX have been duly and validly authorized and issued and are fully
paid and non-assessable;
(iii) the Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture has been duly qualified under the Trust
Indenture Act;
(iv) the DECS have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of USX, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles, entitled to the benefits
provided by the Indenture; and the DECS and the Indenture conform in
all material respects to the descriptions thereof in the Final USX
Prospectus;
(v) the USX Registration Statement has become effective under
the Act; any required filings of the Basic USX Prospectus, any
Preliminary Final USX Prospectus and the Final USX Prospectus, and any
supplements thereto, pursuant to Rule 424(b) have been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effectiveness
of the USX Registration Statement or the use of such Final USX
Prospectus has been issued, no proceedings for that purpose have been
instituted or threatened, and the USX Registration Statement and the
Final USX Prospectus (including the documents incorporated by
reference therein, other than that part of the USX Registration
Statement that constitutes Form T-1 and the financial statements and
other financial and statistical 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, the
Exchange Act and the Trust Indenture Act and the respective rules
thereunder;
(vi) this Agreement has been duly authorized, executed and
delivered by USX;
(vii) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending to which USX or any of its
subsidiaries is a party or of which any property of USX or any of its
subsidiaries is the subject, other than as set forth in the Final USX
Prospectus which, if determined adversely to USX or any of its
subsidiaries, would have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of
USX and its subsidiaries; and, to the best of such counsel's
knowledge, no such proceedings are threatened by governmental
authorities or by others;
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(viii) no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
DECS or the consummation by USX of the transactions contemplated by
this Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the DECS by the Underwriters; and
(ix) the issue and sale of the DECS and the compliance by USX
with all of the provisions of the DECS, the Indenture and this
Agreement with respect to the DECS and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which USX is a party or by which USX is bound or to which any of
the property or assets of USX is subject, nor will such actions result
in any violation of the provisions of the certificate of incorporation
or by-laws of USX or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over USX or any of its properties.
In addition, such counsel shall state that he is the General
Counsel & Senior Vice President -- Human Resources and Secretary of USX (in the
case of Mr. Sandman) or the Assistant General Counsel and Assistant Secretary
of USX (in the case of Mr. Hammerschmidt), has participated (or people subject
to his supervision have participated) on behalf of USX in connection with the
preparation of the USX Registration Statement and has participated (or people
subject to his supervision have participated) in conferences with officers and
other representatives of USX, representatives of the independent public
accountants for USX and representatives of the Underwriters and counsel for the
Underwriters, at which conferences the contents of the USX Registration
Statement and the Final USX Prospectus and related matters were discussed; such
counsel may further state that such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
USX Registration Statement or the Final USX Prospectus and that such counsel
makes no representation that he has independently verified the accuracy,
completeness or fairness of such statements; however, in the course of the
preparation and review of the USX Registration Statement and the Final USX
Prospectus and participation in the aforementioned conferences, such counsel
has been given no reason to believe that, as of the USX Effective Date, the USX
Registration Statement or any further amendment thereto made by USX prior to
the Closing Date (other than that part of the USX Registration Statement that
constitutes Form T-1 and the financial statements and other financial
information therein or incorporated by reference therein, as to which such
counsel need express no belief) contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that such Final USX
Prospectus (other than the financial statements and other financial information
therein or incorporated by reference therein, as to which such counsel need
express no belief), contains an untrue statement of a material fact or omits to
state 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; furthermore, such counsel shall state that he has no reason to
believe that any of the documents incorporated by reference in the Final USX
Prospectus (other than the financial statements and other financial information
therein or incorporated by reference therein, as to which such counsel need
express no belief) when they became effective or were so filed, as the case may
be, in the case of a registration statement which became effective under the
Act, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or
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necessary to make the statements therein not misleading, or, in the case of
other documents which were filed under the Act or the Exchange Act with the
Commission, as of their date, contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and such counsel does not know of any amendment to the USX
Registration Statement required to be filed or any contracts or other documents
of a character required to be filed as an exhibit to the USX Registration
Statement or required to be incorporated by reference into the Prospectus as
amended or supplemented or required to be described in the USX Registration
Statement or the Final USX Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as required.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
laws of the Commonwealth of Pennsylvania and the General Corporation Law of the
State of Delaware or the United States, to the extent such opinion relates to
the law of the State of New York (which law the Indenture, this Agreement and
the DECS state to be the governing law thereof), assume that the laws of the
Commonwealth of Pennsylvania are the same as those of the State of New York and
(B) as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of USX and public officials. References to the Final USX
Prospectus in this paragraph (b) include any supplements thereto at the Closing
Date.
(c) USX shall have furnished to the Representatives the
opinion of Miller & Chevalier, Chartered, special tax counsel for USX, dated
the Closing Date, to the effect that such counsel has reviewed the statements
in the Final USX Prospectus under the caption "Certain United States Federal
Income Tax Considerations" and, insofar as they are, or refer to, statements of
United States law or legal conclusions, such statements are accurate in all
material respects.
(d) RMI shall have furnished to the Representatives the
opinion of Jones, Day, Reavis & Pogue, counsel for RMI, dated the Closing Date,
to the effect that:
(i) RMI has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Ohio,
with corporate power and authority to own or lease its properties and
to conduct its business as described in the RMI Prospectus. RMI is
qualified or registered to do business as a foreign corporation and is
in good standing in the States of Missouri, Pennsylvania and Texas;
(ii) The authorized capital stock of RMI is as set forth in
the first sentence of the second paragraph under the caption
"Description of Capital Stock" in the RMI Prospectus. The statements
contained under the caption "Description of Capital Stock", insofar as
such statetments purport to summarize the provisions of the documents
and statutes referred to therein, present a fair summary of such
provisions. All of the shares of Common Stock of RMI issued and
outstanding on the date hereof (including the Shares) have been duly
authorized and validly issued, and are fully paid and nonassessable;
(iii) such counsel has been advised by the Commission that
the RMI Registration Statement has become effective under the Act and,
to such counsel's knowledge, no stop order suspending the
effectiveness of the RMI Registration Statement under the Act has been
issued and no proceedings for that purpose are pending or threatened
by the Commission. The RMI Prospectus has been filed with the
Commission in the manner and within the time period required by Rule
424(b);
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<PAGE> 19
(iv) this Agreement has been duly authorized, executed and
delivered by RMI;
(v) the performance by RMI of its obligations under this
Agreement will not (a) result in the violation by RMI of any statute,
rule or regulation, in each case known to such counsel, (b) result in
a default under or breach by RMI of any Material Contract (as defined
below), (c) conflict with or result in a default by RMI under RMI's
Amended and Restated Articles of Incorporation or RMI's Code of
Regulations, as amended, or (d) result in the violation by RMI of any
judgment, order or decree known to such counsel to have been issued by
any court or governmental body which is binding upon RMI or its
properties (such counsel may state that it expresses no opinion in
this paragraph with respect to (i) any state securities or "Blue Sky"
laws, or (ii) the By-Laws or rules of the NASD);
(vi) no consent, approval, authorization or order of, or
qualification with any governmental agency or body is required for the
execution by RMI of this Agreement or the performance by RMI of the
transactions contemplated hereby, except (i) such as have been
obtained under the Act and (ii) such as may be required under state
securities or "Blue Sky" laws;
(vii) to such counsel's knowledge, there are no persons other
than USX with registration or other similar rights to have any
securities of RMI registered pursuant to the RMI Registration
Statement or otherwise registered by RMI under the Act; and
In addition, such counsel shall state that, in the course of
the preparation by RMI of the RMI Registration Statement and the RMI Prospectus
(documents filed under the Exchange Act and incorporated by reference in the
Registration Statement (other than RMI's Form 10-Q for the quarter ended
September 30, 1996) having been prepared and filed by RMI without its
participation), it participated in discussions with officers and other
employees of RMI and USX, representatives of Price Waterhouse LLP (the
"Accountants"), the independent accountants of RMI who examined certain of the
financial statements of RMI and its consolidated entities included in the RMI
Registration Statement and the RMI Prospectus, the Representatives and counsel
for the Underwriters concerning the information contained in the RMI
Registration Statement and the RMI Prospectus and the proposed responses to
various items in Form S-3 under the Act. Based upon its examination of the RMI
Registration Statement and the RMI Prospectus, its investigations made in
connection with the preparation of the RMI Registration Statement and its
participation in the discussions referred to above, such counsel shall state
that it is of the opinion that (i) the RMI Registration Statement (other than
the financial statements and other financial or statistical data included
therein, and except for the information referred to under the caption "Experts"
as having been included in the RMI Registration Statement and the RMI
Prospectus on the authority of the Accountants as experts, as to which it does
not express an opinion), at the time the RMI Registration Statement became
effective under the Act complied, and the RMI Prospectus (with the foregoing
exceptions), as of its date complied and as of the date hereof complies, as to
form in all material respects with the requirements of the Act and the rules
and regulations thereunder; and (ii) the documents filed under the Exchange Act
and incorporated by reference in the Registration Statement (with the foregoing
exceptions), as of the time the Registration Statement became effective under
the Act, complied as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations thereunder. In addition, based
on such investigations and discussions, such counsel does not know of any
pending litigation or governmental proceeding required to be described in the
RMI Prospectus that is not described as required.
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<PAGE> 20
In addition, such counsel shall state that such counsel has
not independently verified and is not passing upon, and does not assume any
responsibility for the accuracy, completeness or fairness of the information
contained in the RMI Registration Statement, the RMI Prospectus (except as set
forth in the first and second sentences of opinion (ii) above) or the documents
filed by RMI under the Exchange Act and incorporated by reference in the
Registration Statement. Such counsel shall further state that, based on the
examinations, investigations and participation in the discussions described
above, however, no facts have come to such counsel's attention that cause such
counsel to believe that the RMI Registration Statement (including the Exchange
Act documents incorporated by reference therein but excluding, in each case,
the financial statements and other financial or statistical data included
therein, and except for the information referred to under the caption "Experts"
as having been included in the RMI Registration Statement and the RMI
Prospectus on the authority of the Accountants as experts, as to which such
counsel such counsel need not express a view), at the time it became effective,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the RMI Prospectus (including the
Exchange Act documents but in each case with the foregoing exceptions), as of
its date or on the date of the opinion, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances in which they were made, not
misleading.
In addition, such counsel shall state that, in rendering the
opinions expressed therein, (i) such counsel has not considered the laws of any
jurisdiction other than the Federal laws of the United States and the laws of
the State of Ohio; (ii) such counsel has assumed that the Underwriters,
including the Representatives, will not take any action (including a decision
not to act) pursuant to Section 7(a) or 7(b) of this Agreement in a manner that
would result in a violation by RMI of applicable Federal securities laws; and
(iii) such counsel has assumed that certain agreements, waivers, consents and
other instruments relevant to such counsel's opinion have been duly authorized,
executed and delivered by, and are the valid and binding obligations of, each
party (other than RMI) thereto. For purposes of such opinions, (i) the term
"Material Contracts" refers to the contracts and agreements filed as exhibits
to documents of RMI filed under the Exchange Act and incorporated by reference
in the RMI Registration Statement; and (ii) references to such counsel's
knowledge or to the state of such counsel's knowledge means the actual
knowledge of those individuals at Jones, Day, Reavis & Pogue who have worked on
matters on behalf of RMI during the last two years and does not include the
knowledge of any other person at Jones, Day, Reavis & Pogue. In rendering such
opinion, such counsel may rely as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of RMI and public
officials. References to the RMI Prospectus in the preceding paragraph include
any supplements thereto at the Closing Date.
(e) The Representatives shall have received from Simpson
Thacher & Bartlett counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the DECS, the
Indenture, the USX Registration Statement, the Final USX Prospectus (together
with any supplement thereto), the Shares, the RMI Registration Statement, the
RMI Prospectus (together with any supplement thereto) and other related matters
as the Representatives may reasonably require, and USX and RMI shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(f) USX shall have furnished to the Representatives a
certificate of USX, signed by the Chairman of the Board, the Vice Chairman and
Chief Financial Officer or any Vice President and
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the principal financial or accounting officer of USX (who is not one of the
foregoing signatories), dated the Closing Date, to the effect that the signers
of such certificate have carefully examined the USX Registration Statement, the
Final USX Prospectus, any supplement to the Final USX Prospectus and this
Agreement and that:
(i) the representations and warranties of USX in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and USX has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the USX
Registration Statement or the use of the Final USX Prospectus has been
issued and no proceedings for that purpose have been instituted or, to
USX's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in, or incorporated by reference in, the Final USX Prospectus
(exclusive of any supplement thereto), there has been no material
adverse change, nor any development likely to result in a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations or prospects of USX and its subsidiaries, otherwise than as
set forth in the Final USX Prospectus (exclusive of any supplement
thereto).
(g) RMI shall have furnished to the Representatives a
certificate of RMI, signed by the Chairman of the Board, the President or an
Executive Vice President and the principal financial or accounting officer of
RMI (who is not one of the foregoing signatories), dated the Closing Date, to
the effect that the signers of such certificate have carefully examined the RMI
Registration Statement, the RMI Prospectus, any supplements to the RMI
Prospectus and this Agreement and that:
(i) the representations and warranties of RMI in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and RMI has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the RMI
Registration Statement or the use of the RMI Prospectus has been
issued and no proceedings for that purpose have been instituted or, to
RMI's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in, or incorporated by reference in, the RMI Prospectus
(exclusive of any supplement thereto), there has been no material
adverse change, nor any development likely to result in a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations or prospects of RMI and its subsidiaries, otherwise than as
set forth in the RMI Prospectus (exclusive of any supplement thereto).
(h) At the Execution Time and at the Closing Date, Price
Waterhouse 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, including statements and information of
the type ordinarily included in accountants "comfort letters" to underwriters
with respect to the financial statements, financial
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<PAGE> 22
statement schedules, and certain other financial information relating to USX
contained in or incorporated by reference into the USX Registration Statement
or Final USX Prospectus.
(i) At the Execution Time and at the Closing Date, Price
Waterhouse LLP, 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 Execution Time and as of the Closing Date, in
form and substance satisfactory to the Representatives, including statements
and information of the type ordinarily included in accountants "comfort
letters" to underwriters with respect to the financial statements, financial
statement schedules, and certain other financial information relating to RMI
contained in or incorporated by reference into the RMI Registration Statement
or RMI Prospectus.
(j) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in each of the USX Registration
Statement and the RMI Registration Statement (exclusive of any amendment
thereof) and each of the Final USX Prospectus and the RMI 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 paragraphs (h) and
(i) of this Section 8 or (ii) any change, or any development involving a
prospective change, in or affecting the business or properties of either USX or
RMI and their respective subsidiaries, taken as a whole, 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 offering or delivery of the DECS as
contemplated by the USX Registration Statement and the RMI Registration
Statement (in either case, exclusive of any amendment thereof) and the Final
USX Prospectus and the RMI Prospectus (in either case, exclusive of any
supplement thereto).
(k) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of USX's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
(l) At the Execution Time, RMI shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from
each director and executive officer of RMI addressed to the Representatives, in
which each such person agrees not to (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, or announce the offering of, any shares of
RMI Common Stock or any securities convertible into or exercisable or
exchangeable for shares of RMI Common Stock or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of the ownership of shares of RMI Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be settled by
delivery of shares of RMI Common Stock or such other securities, in cash or
otherwise, for a period of 90 days from the Execution Time without the prior
written consent of the Representatives; provided, however, that any such
director or executive officer, together with each of the other directors and
executive officers of RMI, may sell up to 100,000 shares of RMI Common Stock in
the aggregate.
(m) Prior to the Closing Date, each of USX and RMI shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
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If any of the conditions specified in this Section 8 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 USX and RMI in
writing or by telephone or telegraph confirmed in writing.
9. Reimbursement of Underwriters' Expenses. If the sale of
the DECS provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 8 hereof is not satisfied,
because of any termination pursuant to Section 12(i) hereof or because of any
refusal, inability or failure on the part of USX or RMI to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any Underwriter, USX will reimburse the Underwriters severally upon
demand for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the DECS. If USX is required to make any
payment to the Underwriters under this Section 9 because of RMI's refusal,
inability or failure to satisfy any condition to the obligations of the
Underwriters set forth in Section 8, RMI shall reimburse USX on demand for all
amounts so paid.
10. Indemnification and Contribution. (a) USX 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 USX Registration Statement as
originally filed or in any amendment thereof, or in the Basic USX Prospectus,
any Preliminary Final USX Prospectus or the Final USX 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 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 USX will not be liable under the indemnity agreement in this paragraph (a)
to the extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made in the USX Registration Statement as originally filed
or in any amendment thereof, or in any Preliminary Final USX Prospectus or the
Final USX Prospectus, or in any amendment thereof or supplement thereto in
reliance upon and in conformity with written information furnished to USX by or
on behalf of any Underwriter through the Representatives specifically for
inclusion therein; provided, further, that USX will not be liable under the
indemnity agreement in this paragraph (a) to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made in
the USX Registration Statement as originally filed or in any amendment thereof,
or in the Basic USX Prospectus, any Preliminary Final USX Prospectus or the
Final USX Prospectus, or in any amendment thereof or supplement thereto in
reliance upon and in conformity with written information furnished to USX by
RMI specifically for inclusion therein, including the information contained in
any Preliminary RMI Prospectus or RMI Prospectus included in any such document
(other than information contained in or omitted from any such Preliminary RMI
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Prospectus or RMI Prospectus in reliance on and in conformity with information
furnished to RMI by USX specifically for inclusion therein). This indemnity
agreement will be in addition to any liability which USX may otherwise have.
(b) RMI and USX jointly and severally agree 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 (i) the RMI Registration Statement as originally
filed or in any amendment thereof, or in any Preliminary RMI Prospectus or the
RMI Prospectus, or in any amendment thereof or supplement thereto, or (ii) the
USX Registration Statement as originally filed or in any amendment thereof, or
in any Preliminary Final USX Prospectus or the Final USX Prospectus, or in any
amendment thereto or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state in the documents referred to in clause
(i) or (ii) above a material fact required to be stated in the documents
referred to in clause (i) or (ii) above or necessary to make the statements
therein not misleading, but in the case of the documents referred to clause
(ii) only to the extent that the untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information furnished in writing to USX by RMI specifically for
inclusion therein (other than information contained in or omitted from any such
Preliminary RMI Prospectus or RMI Prospectus in reliance on and in conformity
with information furnished to RMI by USX specifically for inclusion therein,
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 neither RMI nor USX will be liable under the indemnity agreement
in this paragraph (b) to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made in the documents referred
to in clause (i) above in reliance upon and in conformity with written
information furnished to RMI by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein; provided, further, that as
to any Preliminary RMI Prospectus, neither RMI nor USX will be liable under
this indemnity agreement in this paragraph (b) to the extent that any such
loss, claim, damage or liability arises out of the failure to send or give a
copy of the RMI Prospectus, as the same may be amended or supplemented, to a
person within the time required by the Act, and the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such Preliminary RMI Prospectus was corrected in the RMI
Prospectus, unless such failure resulted from non-compliance by RMI with
Section 7(d); provided, further that RMI shall not be liable under the
indemnity agreement in this paragraph (b) to the extent that any such loss,
claim, damage or liability arises out of or is based on any such untrue
statement or alleged untrue statement or omission or alleged omission made in
the documents referred to in clause (i) above in reliance upon and in
conformity with written information furnished to RMI by USX specifically, for
inclusion therein. This indemnity agreement will be in addition to any
liability which RMI or USX may otherwise have.
(c) USX agrees to indemnify and hold harmless RMI, the
directors, officers, employees and agents of RMI, and each person who controls
RMI 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
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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 USX Registration Statement as originally filed or in any amendment
thereof, or in the Basic USX Prospectus, any Preliminary Final USX Prospectus
or the Final USX 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 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 USX will not be
liable under the indemnity agreement in this paragraph (c) to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made in the USX Registration Statement as originally filed or in any
amendment thereof, or in any Preliminary Final USX Prospectus or the Final USX
Prospectus, or in any amendment thereof or supplement thereto in reliance upon
and in conformity with written information furnished by or on behalf of RMI
specifically for inclusion therein.
(d) RMI agrees to indemnify and hold harmless USX, the
directors, officers, employees and agents of USX and each person who controls
USX, 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 any Preliminary Final USX Prospectus or the
Final USX 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 not misleading, but only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished in
writing to USX by RMI specifically for inclusion therein, 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.
(e) Each Underwriter severally agrees to indemnify and hold
harmless USX, each of its directors, each of its officers who signs the USX
Registration Statement, and each person who controls USX within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity in paragraph (a) from USX to each Underwriter, but only with
reference to written information furnished to USX by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in such indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. USX
acknowledges that the statements set forth in the sixth and last paragraphs of
the cover page, in the paragraph on the inside cover page, and under the
heading "Plan of Distribution" in any Preliminary Final USX Prospectus or the
Final USX Prospectus constitute the only information furnished in writing by or
on behalf of any Underwriter for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm that such
statements are correct.
(f) Each Underwriter severally agrees to indemnify and hold
harmless RMI and USX, each of their respective directors, each of their
respective officers who signs the RMI Registration Statement or the USX
Registration Statement, respectively, and each person who controls RMI or USX
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing
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indemnity in paragraph (b) from RMI and USX to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to RMI
by or on behalf of any Underwriter through the Representatives specifically for
inclusion in the documents referred to in such indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. RMI and USX acknowledge that the statements set forth in the
fourth paragraph of the cover page, in the paragraph on the inside cover page,
and under the heading "Plan of Distribution" in any Preliminary RMI Prospectus
or the RMI Prospectus constitute the only information furnished in writing by
or on behalf of any Underwriter for inclusion in the documents referred to in
the foregoing indemnity, and you, as the Representatives, confirm that such
statements are correct.
(g) Promptly after receipt by an indemnified party under this
Section 10 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 10, 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 any liability under paragraphs (a), (b), (c), (d), (e)
or (f) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraphs (a), (b), (c), (d), (e) or
(f) above. The indemnifying party shall be entitled to appoint counsel of
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, the indemnified party shall have the right to employ
separate counsel (including local counsel), 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 upon the advice of its counsel that there are
legal defenses available to it and/or other indemnified parties which are
different from those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party; provided, however, in no event shall the
indemnifying party be liable for legal fees or expenses of more than one
primary firm representing the indemnified parties or more than one local
counsel in each state or other jurisdiction in which an action in which
indemnification is available has been brought. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(h) In the event that the indemnity provided in paragraphs
(a), (b), (c), (d), (e) or (f) of this Section 10 is unavailable to or
insufficient to hold harmless an indemnified party for any reason, each
indemnifying party agrees to contribute to the aggregate losses, claims,
damages and
26
<PAGE> 27
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which an indemnified party may be subject in such proportion as is appropriate
to reflect the relative benefits received by USX and RMI on the one hand and by
the Underwriters on the other from the offering of the DECS; 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 DECS) be
responsible for any amount in excess of the underwriting discount applicable to
the DECS purchased by such Underwriter hereunder. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, each
indemnifying party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of USX and
RMI on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations; provided, however, that if the
indemnification relates to USX and RMI as the respective indemnifying and
indemnified parties (or vice versa), such indemnifying parties shall contribute
in such proportion as shall be appropriate to reflect the relative faults of
USX or RMI as applicable, with respect to the statements or omissions which
resulted in such Losses, as well as any other relevant equitable
considerations. The relative benefits received by USX or RMI on the one hand
and the Underwriters on the other with respect to such offering shall be deemed
to be equal to the total net proceeds from the offering (before deducting
expenses) received by USX, and the total underwriting discounts and
commissions, respectively, in each case as set forth on the cover page of the
Final USX Prospectus and, as between RMI and the Underwriters, RMI shall be
deemed for this purpose to have received such total net proceeds as received by
USX. Relative fault shall be determined by reference to whether any alleged
untrue statement or omission relates to information provided by USX, RMI or the
Underwriters. USX, RMI 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 (h), 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 10, 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 such Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls USX or RMI
within the meaning of either the Act or the Exchange Act, each officer of USX
or RMI who shall have signed the USX Registration Statement or the RMI
Registration Statement and each director of USX or RMI shall have the same
rights to contribution as USX or RMI, subject in each case to the applicable
terms and conditions of this paragraph (h).
11. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the DECS 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
principal amount of DECS set forth opposite their names in Schedule I hereto
bears to the aggregate principal amount of DECS set forth opposite the names of
all the remaining Underwriters) the DECS which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of DECS which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of DECS 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 DECS, and if such nondefaulting Underwriters
do not purchase all the DECS, this Agreement will terminate without liability
to any nondefaulting Underwriter, USX or RMI. In the event of a default by any
Underwriter
27
<PAGE> 28
as set forth in this Section 11, the Closing Date shall be postponed for such
period, not exceeding seven days, as the Representatives shall determine in
order that the required changes in the USX or RMI Registration Statement and
the Final USX or RMI Prospectus or in any other documents or arrangements may
be effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to USX, RMI and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
12. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to USX and RMI prior to delivery of and payment for the DECS, if prior to such
time (i) trading in USX's or RMI's common stock shall have been suspended by
the Commission or the NYSE, (ii) trading in securities generally on the NYSE
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (iii) a banking moratorium shall have been
declared by either Federal or New York State authorities, (iv) there shall have
been any decrease in the rating of any of USX's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change or (v) there
shall have occurred any outbreak or escalation of hostilities, declaration by
the United States of a national emergency or war or other calamity or crisis,
the effect of which on financial markets of the United States is such as to
make, it, in the judgment of the Representatives, impracticable or inadvisable
to proceed with the offering or delivery of the DECS as contemplated by the
Final USX Prospectus (exclusive of any supplement thereto).
13. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of USX and RMI or their respective officers 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 the
Underwriters, USX or RMI or any of the officers, directors or controlling
persons referred to in Section 10 hereof, and will survive delivery of and
payment for the DECS. The provisions of Sections 9 and 10 hereof shall survive
the termination or cancellation of this Agreement.
14. 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 it at Seven World Trade
Center, New York, New York 10048; if sent to USX, will be mailed, delivered or
telegraphed and confirmed to it at 600 Grant Street, Pittsburgh, Pennsylvania
15219-4776, Attention Paul C. Reinbolt; or if sent to RMI, will be mailed,
delivered or telegraphed and confirmed to it at 1000 Warren Avenue, Niles, OH
44446, Attention: Timothy G. Rupert.
15. 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 10
hereof, and no other person will have any right or obligation hereunder.
28
<PAGE> 29
16. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
If the foregoing is 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 USX, RMI and the several Underwriters.
Very truly yours,
USX Corporation
By: --------------
Name:
Title:
RMI Titanium Company
By: ----------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers Inc
Lehman Brothers Inc.
By: Salomon Brothers Inc
By: ---------------------
Name:
Title:
For itself and the other several
Underwriters named in Schedule I to
the foregoing Agreement.
29
<PAGE> 30
SCHEDULE I
<TABLE>
<CAPTION>
Number of Underwritten
Underwriter DECS to be Purchased
- ----------- ----------------------
<S> <C>
Salomon Brothers Inc............... 2,500,000
Lehman Brothers Inc................ 2,500,000
---------
Total ................... 5,000,000
=========
</TABLE>
30
<PAGE> 31
EXHIBIT A
[Letterhead of executive officer or director
of RMI Titanium Company]
RMI Titanium Company
Public Offering of DECS
__________, 1996
Salomon Brothers Inc
Lehman Brothers Inc.
As Representatives of the several Underwriters
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), among RMI
Titanium Company, an Ohio corporation (the "Company"), USX Corporation, a
Delaware corporation ("USX"), and the several underwriters named therein (the
"Underwriters") for whom you are acting as representatives, relating to an
underwritten public offering of DECS (Debt Exchangeable for Common Stock) of
USX, exchangeable for common stock, $.01 par value, of the Company (the "RMI
Common Stock") .
In order to induce you and the other Underwriters to enter
into the Underwriting Agreement, the undersigned agrees not to (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of, directly or indirectly, or
announce the offering of, any shares of RMI Common Stock or any securities
convertible into or exercisable or exchangeable for shares of RMI Common Stock
or (ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of the ownership of shares
of RMI Common Stock, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of shares of RMI Common Stock or such
other securities, in cash or otherwise, for a period of 90 days from the date
of this Agreement without the prior written consent of the Representatives;
provided, however, that the undersigned, together with each of the other
directors and executive officers of the Company on the date hereof, may sell up
to 100,000 shares of RMI Common Stock in the aggregate.
31
<PAGE> 32
If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting
Agreement), the agreement set forth above shall likewise be terminated.
Yours very truly,
--------------------------------------
[Signature of executive officer]
[Name and address of executive officer]
32
<PAGE> 1
Exhibit 4.1
USX CORPORATION
ESTABLISHMENT ACTION OF TERMS COMMITTEE AND RATE COMMITTEE
APPOINTED BY THE BOARD OF DIRECTORS OF USX CORPORATION
ON MARCH 29, 1994
- -----------------------------------------------------------------------------
Resolutions of the Board of Directors (the "Board") of USX Corporation
("USX or the "Issuer") adopted on March 29, 1994 (the "Board Resolutions"): (a)
authorized the issuance and sale of up to $1.0 billion of debt securities, (b)
appointed a Terms Committee to consist of the Chairman of the Board of
Directors, the Executive Vice President-Accounting & Finance and Chief
Financial Officer and the Vice President & Treasurer and delineated the powers
of such committee, and (c) appointed a Rate Committee consisting of the members
of the Terms Committee and the Assistant Treasurer-Corporate Finance and
delineated the powers of such committee. Officers of the Issuer have held
discussions with Salomon Brothers Inc and Lehman Brothers Inc., (the
"Underwriters") concerning a public offering of notes. On the basis of such
discussions, the Terms Committee and the Rate Committee hereby adopt the
following resolutions:
RESOLVED, that the First Supplemental Indenture dated as of December 3,
1996 supplementing the Indenture, dated as of March 15, 1993, between USX
Corporation as Issuer and PNC Bank, National Association, as Trustee, as
attached hereto, is hereby approved with such changes as the executing officer
in his discretion deems appropriate (the Indenture as so supplemented, the
"Indenture").
RESOLVED, that there be, and there is hereby, created, approved and
established under the Indenture, a series of Debt Securities whose terms shall
be as follows (capitalized terms used herein and not otherwise defined herein
having the respective meanings ascribed to them in the Indenture):
(1) The Notes shall be titled, bear interest at the rate, mature and be
exchangeable as follows:
6 3/4% EXCHANGEABLE NOTES DUE FEBRUARY 1, 2000 (THE "NOTES")
(Subject to Exchange at Maturity into Common Stock,
Par Value $.01 Per Share, of RMI Titanium Company)
The aggregate principal amount of the Notes which may be authenticated and
delivered under the Indenture is limited to $117,211,950 except for Notes
authenticated and delivered upon registration or transfer of, or in exchange
for, or in lieu of, other Notes pursuant to the Indenture.
At maturity (including as a result of acceleration or otherwise), the
principal amount of each Note will be mandatorily exchanged by USX into a number
of shares of Common Stock of RMI Titanium Company (or at the option of USX, the
cash equivalent
<PAGE> 2
and/or such other consideration as permitted or required by the terms of the
Notes) at the Exchange Rate, as defined in the Indenture.
(2) Interest on the Notes shall accrue from December 3, 1996, and be
payable quarterly on February 1, May 1, August 1 and November 1 of each year,
commencing February 1, 1997, until the principal thereof is paid or made
available for payment. Each such February 1, May 1, August 1, or November 1
shall be an "Interest Payment Date" for the Notes. The January 15, April 15,
July 15, or October 15 (whether or not a Business Day), as the case may be, next
preceding an Interest Payment Date shall be the "Regular Record Date" for the
interest payable on such Interest Payment Date. The total amount of principal
and interest due on any Global Security representing one or more Notes on any
Interest Payment Date or at maturity shall be made available to the Trustee in
the City of Pittsburgh, Commonwealth of Pennsylvania on such date.
(3) The Notes shall be issued in the form of one or more fully
registered Global Securities which will be deposited with, or on behalf of, The
Depository Trust Company (the "Depositary") and will be registered in the name
of the Depositary or its nominee.
(4) The Notes shall not be redeemable prior to maturity and shall not
provide for any sinking fund.
(5) The provisions of Section 12.02(b) and Section 12.02(c) of the
Indenture with respect to defeasance of the Debt Securities of a Series and
covenant defeasance of the Debt Securities of a Series, respectively, shall not
be applicable to the Notes.
(6) The provisions of Sections 4.07, 4.08 and 4.09 of the Indenture
with respect to Change in Control shall not be applicable to the Notes.
(7) The public offering price of the Notes shall be 100% of the
principal amount thereof per Note or $106,875,000 in the aggregate, or
$117,211,950 if the over-allotment option is fully exercised.
(8) The net proceeds to be paid to the Issuer by the Underwriters for
the Notes shall be $103,675,000 in the aggregate, or $113,702,446 if the
over-allotment option is fully exercised.
(9) The net proceeds of the Notes shall be used for general business
purposes of the U.S. Steel Group.
(10) The Notes will be issued only in book entry form in denominations
of $21.375 and integral multiples thereof.
RESOLVED, the issuance of one or more Global Securities registered in
the name of the Depositary or its nominee and related Trustee's certificate of
authentication to be endorsed thereon shall be in substantially the form
included in the aforesaid form of Indenture, with such insertions, additions
and changes as shall be hereafter approved by the officers executing the same,
such approval to be conclusively evidenced by their execution thereof, and the
Chairman or any Vice Chairman of the Board of Directors or any Vice president,
and the Treasurer or any Assistant Treasurer of the Issuer, hereby is
authorized, in the name and on behalf of the Issuer, to execute and deliver up
to $117,211,950 aggregate principal amount of the Notes in the form of one or
more
-2-
<PAGE> 3
Global Securities, as required, to the Trustee for authentication and to
execute and deliver to the Trustee the written order of the Issuer for the
authentication and delivery thereof.
RESOLVED, the execution of Global Securities by the Chairman or any
Vice Chairman of the Board of Directors or any Vice President, and the
Treasurer or any Assistant Treasurer by their respective facsimile signatures,
and the printing or engraving of the seal of the Issuer on the Global
Securities, hereby are authorized and approved as and for execution by the
Issuer, notwithstanding that any such officer may have ceased to occupy such
office at any time any Global Security is presented for authentication.
RESOLVED, the form of Underwriting Agreement between the Issuer and the
Underwriters, presented to the Committees, covering the sale by the Issuer and
the purchase by the Underwriters of the Notes, hereby is approved, and the
Chairman or any Vice Chairman of the Board of Directors or any Vice President
hereby is authorized, in the name and on behalf of the Issuer, to execute and
deliver the Underwriting Agreement in substantially such form with such
insertions, additions and changes as may be hereafter approved by the officer
executing and delivering the same, such approval to be conclusively evidenced
by his execution thereof.
RESOLVED, each of the officers of the Issuer hereby is authorized to
execute, deliver and file any and all instruments and documents and amendments
thereto and to do any and all acts or things in the name and on behalf of the
Issuer by him deemed necessary or advisable in connection with the issuance,
sale and delivery of the Notes and for the purpose of carrying into effect any
of the transactions and matters contemplated by this Action.
ROBERT M. HERNANDEZ
--------------------------------------
Robert M. Hernandez
Vice Chairman & Chief Financial Officer
G. R. HAGGERTY
--------------------------------------
G. R. Haggerty
Vice President & Treasurer
P. C. REINBOLT
--------------------------------------
P. C. Reinbolt
Assistant Treasurer-Corporate Finance
Dated: November 26, 1996
-3-
<PAGE> 4
USX CORPORATION
ACTION OF THE SPECIAL COMMITTEE
APPOINTED BY THE BOARD OF DIRECTORS OF USX CORPORATION
ON OCTOBER 29, 1996
- --------------------------------------------------------------------------------
Resolutions of the Board of Directors (the "Board") of USX Corporation
("USX or the "Issuer") adopted on October 29, 1996 (the "Board Resolutions")
authorized the issuance and sale of USX Debt Exchangeable for Common Stock
("DECS") of RMI Titanium Company ("RMI") and appointed a Special Committee to
consist of the Vice President & Treasurer, the Vice President-Accounting &
Finance, U.S. Steel Group, and the Assistant Treasurer-Corporate Finance to
review and approve the final terms and conditions of the DECS. Officers of the
Issuer have held discussions with Salomon Brother Inc and Lehman Brothers Inc.,
(the "Underwriters") concerning a public offering of DECS. On the basis of such
discussions, the Special Committee hereby adopts the following resolutions:
RESOLVED, that the First Supplemental Indenture dated as of December 3,
1996 supplementing the Indenture, dated as of March 15, 1993, between USX
Corporation as Issuer and PNC Bank, National Association, as Trustee, as
attached hereto, is hereby approved with such changes as the executing officer
in his discretion deems appropriate (the Indenture as so supplemented, the
"Indenture").
RESOLVED, that there be, and there is hereby, created, approved and
established under the Indenture, a series of Debt Securities whose terms shall
be as follows (capitalized terms used herein and not otherwise defined herein
having the respective meanings ascribed to them in the Indenture):
(1) The DECS shall be titled, bear interest at the rate, mature and be
exchangeable as follows:
6 3/4% EXCHANGEABLE NOTES DUE FEBRUARY 1, 2000
(Subject to Exchange at Maturity into Common Stock,
Par Value $.01 Per Share, of RMI Titanium Company)
The aggregate principal amount of the DECS which may be authenticated and
delivered under the Indenture is limited to $117,211,950 except for DECS
authenticated and delivered upon registration or transfer of, or in exchange
for, or in lieu of, other DECS pursuant to the Indenture.
At maturity (including as a result of acceleration or otherwise), the
principal amount of each DECS will be mandatorily exchanged by USX into a number
of shares of Common Stock of RMI (or at the option of USX, the cash equivalent
and/or such other consideration as permitted or required by the terms of the
DECS) at the Exchange Rate, as defined in the Indenture.
<PAGE> 5
(2) Interest on the DECS shall accrue from December 3, 1996, and be
payable quarterly on February 1, May 1, August 1, and November 1 of each year,
commencing February 1, 1997, until the principal thereof is paid or made
available for payment. Each such February 1, May 1, August 1, or November 1
shall be an "Interest Payment Date" for the DECS. The January 15, April 15, July
15, or October 15 (whether or not a Business Day), as the case may be, next
preceding an Interest Payment Date shall be the "Regular Record Date" for the
interest payable on such Interest Payment Date. The total amount of principal
and interest due on any Global Security representing one or more DECS on any
Interest Payment Date or at maturity shall be made available to the Trustee in
the City of Pittsburgh, Commonwealth of Pennsylvania on such date.
(3) The DECS shall be issued in the form of one or more fully
registered Global Securities which will be deposited with, or on behalf of, The
Depository Trust Company (the "Depositary") and will be registered in the name
of the Depositary or its nominee.
(4) The DECS shall not be redeemable prior to maturity and shall not
provide for any sinking fund.
(5) The provisions of Section 12.02(b) and Section 12.02(c) of the
Indenture with respect to defeasance of the Debt Securities of a Series and
covenant defeasance of the Debt Securities of a Series, respectively, shall not
be applicable to the DECS.
(6) The provisions of Sections 4.07, 4.08 and 4.09 of the Indenture
with respect to Change in Control shall not be applicable to the DECS.
(7) The public offering price of the DECS shall be 100% of the
principal amount thereof per DECS or $106,875,000 in the aggregate, or
$117,211,950 if the over-allotment option is fully exercised.
(8) The net proceeds to be paid to the Issuer by the Underwriters for
the DECS shall be $103,675,000 in the aggregate, or $113,702,446 if the
over-allotment option is fully exercised.
(9) The net proceeds of the DECS shall be used for general business
purposes of the U.S. Steel Group.
(10) The DECS will be issued only in book entry form in denominations
of $21.375 and integral multiples thereof.
RESOLVED, the form of Underwriting Agreement between the Issuer and
the Underwriters, presented to the Committee covering the sale by the Issuer
and the purchase by the Underwriters of the DECS, hereby is approved, and the
Chairman or any Vice Chairman of the Board of Directors or any Vice President
hereby is authorized, in the name and on behalf of the Issuer, to execute and
deliver the Underwriting Agreement in substantially such form with such
insertions, additions and changes as
-2-
<PAGE> 6
may be hereafter approved by the officer executing and delivering the same,
such approval to be conclusively evidenced by his execution thereof.
RESOLVED, each of the officer of the Issuer hereby is authorized to
execute, deliver and file any and all instruments and documents and amendments
thereto and to do any and all acts or things in the name and on behalf of the
Issuer by him deemed necessary or advisable in connection with the issuance,
sale and delivery of the DECS and for the purpose of carrying into effect any
of the transactions and matters contemplated by this Action.
G.R. HAGGERTY
-------------------------------------
G.R. Haggerty
Vice President & Treasurer
-------------------------------------
E.F. Guna
Vice President-Accounting & Finance
U.S. Steel Group
P.C. REINBOLT
-------------------------------------
P.C. Reinbolt
Assistant Treasurer-Corporate Finance
Dated: November 26, 1996
<PAGE> 1
Exhibit 4.2
DRAFT OF 11/26/96
================================================================================
USX CORPORATION, Issuer
AND
PNC BANK, NATIONAL ASSOCIATION, TRUSTEE
---------------------------------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 3, 1996
---------------------------------
SUPPLEMENTAL TO INDENTURE DATED AS OF MARCH 15, 1993
================================================================================
<PAGE> 2
This First Supplemental Indenture (the "Supplemental Indenture") is made
and entered into as of December 3, 1996 between USX Corporation, a Delaware
corporation (the "Company" or "Issuer"), and PNC Bank, a national banking
association (the "Trustee"), as Trustee under the Indenture dated as of March
15, 1993 (the "Indenture").
WHEREAS, the parties hereto previously entered into the Indenture to
provide for the issuance of one or more Series of debt securities (the "Debt
Securities"); and
WHEREAS, Section 10.01 of the Indenture provides that the Company, when
authorized by its Board of Directors, and the Trustee, may from time to time and
at any time enter into an indenture or indentures supplemental to the Indenture,
without the consent of any holder of Debt Securities, among other things, (a) to
add to the covenants of the Company, for the benefit or the protection of the
holders of any or all Series of Debt Securities (and, if such covenants are to
be for the benefit of less than all such Series, stating that such covenants are
expressly being included solely for the benefit of such Series), (b) to add to,
change or eliminate any of the provisions of the Indenture in respect of one or
more Series of Debt Securities, provided that any such addition, change or
elimination (i) shall neither (A) apply to any Debt Security of any Series
created prior to the execution of such supplemental indenture and entitled to
the benefit of such provision nor (B) modify the rights of the holder of any
such Debt Security with respect to such provision or (ii) shall become effective
only where there is no such Debt Security outstanding and (c) to set forth the
form and any terms of any Series of Debt Securities which the Company and the
Trustee deem necessary or desirable to include in a supplemental indenture; and
WHEREAS, the Company has duly authorized the creation of a series of its
Debt Securities denominated its "6 3/4% Exchangeable Notes Due February 1, 2000"
representing up to 5,483,600 of its "Debt Exchangeable for Common Stock(SM) "
(such Debt Securities being referred to herein as the "DECS(SM)"), the principal
amount of which is mandatorily exchangeable at Maturity into Common Stock, par
value $.01 per share (the "RMI Common Stock"), of RMI Titanium Company, an Ohio
corporation ("RMI"), or, at the option of the Company under certain
circumstances, cash, in either case at the Exchange Rate (as defined herein),
and/or other securities or cash as described herein; and
WHEREAS, the entry into this Supplemental Indenture by the parties hereto
is in all respects authorized by the provisions of the Indenture; and
WHEREAS the Company has duly authorized the execution and delivery of this
Supplemental Indenture, and all things necessary have been done to make the
DECS, when executed by the Company and authenticated and delivered hereunder and
duly issued by the Company, the valid obligations of the Company, and to make
this Supplemental Indenture a valid agreement of the Company, in accordance with
their and its terms.
NOW, THEREFORE:
For and in consideration of the premises and purchase of the DECS by the
holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all holders of the Debt Securities of such series, as
follows:
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ARTICLE I
CERTAIN PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of the Indenture and this Supplemental Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article;
(2) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to the Indenture and this Supplemental Indenture as a whole and not
to any particular Article, Section or other subdivision; and
(3) capitalized terms used but not defined herein are used as they are
defined in the Indenture.
"Adjustment Event" means (i) any dividend or distribution by RMI to all
holders of RMI Common Stock of evidences of its indebtedness or other assets
(excluding (1) dividends or distributions referred to in Section 2.04(a)(i)(A)
hereof, (2) any common shares issued pursuant to a reclassification referred to
in Section 2.04(a)(i)(D) hereof and (3) any Ordinary Cash Dividends) or any
issuance by RMI to all holders of RMI Common Stock of rights or warrants (other
than rights or warrants referred to in Section 2.04(a)(ii) hereof), (ii) any
consolidation or merger of RMI with or into another entity (other than a merger
or consolidation in which RMI is the continuing corporation and in which the
shares of RMI Common Stock outstanding immediately prior to the merger or
consolidation are not exchanged for cash, securities or other property of RMI or
another corporation), (iii) any sale, transfer, lease or conveyance to another
corporation of the property of RMI as an entirety or substantially as an
entirety, (iv) any statutory exchange of securities of RMI with another
corporation (other than in connection with a merger or acquisition) or (v) any
liquidation, dissolution or winding up of RMI.
"Business Day" means, solely for the purposes of this Supplemental
Indenture, any day that is not a Saturday, a Sunday or a day on which the NYSE
or banking institutions or trust companies in The City of New York are
authorized or obligated by law or executive order to close.
"Closing Price" of any security on any date of determination means (a) the
closing sale price (or, if no closing sale price is reported, the last reported
sale price) of such security (regular way) on the NYSE on such date, (b) if such
security is not listed for trading on the NYSE on any such date, as reported in
the composite transactions for the principal United States securities exchange
on which such security is so listed, (c) if such security is not so listed on a
United States national or regional securities exchange, as reported by the
NASDAQ Stock Market, (d) if such security is not so reported, the last quoted
bid price for such security in the over-the-counter market as reported by the
National Quotation Bureau or similar organization or (e) if such security is not
so quoted, the average of the mid-point of the last bid and ask prices for such
security from each of at least three nationally recognized investment banking
firms selected by the Company for such purpose.
"DECS" has the meaning set forth in the recitals to this Supplemental
Indenture.
"Dilution Event" has the meaning set forth in Section 2.04(a).
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"Exchange Rate" means a rate, determined by the Company and notified to the
Trustee, equal to (a) if the Maturity Price is greater than or equal to $25.23
(the "Threshold Appreciation Price"),0.8472 shares of RMI Common Stock per DECS,
(b) if the Maturity Price is less than the Threshold Appreciation Price but is
greater than the Initial Price, (i) a fraction equal to the Initial Price
divided by the Maturity Price of (ii) one share of RMI Common Stock per DECS
(such fractional share being calculated to the nearest 1/10,000th of a share or,
if there is not a nearest 1/10,000th of a share, to the next lower 1/10,000th of
a share) and (c) if the Maturity Price is less than or equal to the Initial
Price, one share of RMI Common Stock per DECS; provided, however, that the
Exchange Rate is subject to adjustment from time to time pursuant to Section
2.04.
"holder" has the meaning set forth in Section 1.01 of the Indenture.
"Initial Price" means $21.375 per share of RMI Common Stock.
"Market Price" means, as of any date of determination, the average Closing
Price per share of RMI Common Stock for the 20 Trading Days immediately prior to
the date of determination; provided, however, that if there are not 20 Trading
Days for the RMI Common Stock occurring later than the 60th calendar day
immediately prior to, but not including, such date, the Market Price shall be
determined as the market value per share of RMI Common Stock as of such date as
determined by a nationally recognized investment banking firm retained for such
purpose by the Company.
"Maturity Price" means the average Closing Price per share of RMI Common
Stock for the 20 Trading Days immediately prior to, but not including, the date
of Maturity, which price shall be determined by the Company and notified to the
Trustee; provided, however, that if there are not 20 Trading Days for the RMI
Common Stock occurring later than the 60th calendar day immediately prior to,
but not including, the date of Maturity, Maturity Price means the market value
per share of RMI Common Stock as of the date of Maturity as determined by a
nationally recognized investment banking firm retained for such purpose by the
Company; provided, further, that the Maturity Price is subject to adjustment
from time to time as set forth in Section 2.04(a)(iv).
"NYSE" means the New York Stock Exchange, Inc.
"Ordinary Cash Dividend" has the meaning set forth in Section 2.04(b)(5).
"Reported Securities" means securities (A)(i) that are listed on a United
States national securities exchange, (ii) that are reported on a United States
national securities system subject to last sale reporting, (iii) that are traded
in the over-the-counter market and reported on the National Quotation Bureau or
similar organization or (iv) for which bid and ask prices are available from at
least three nationally recognized investment banking firms and (B) that are
either (x) perpetual equity securities or (y) non-perpetual equity securities or
debt securities with a stated maturity after the Stated Maturity of the DECS.
"RMI Common Stock" has the meaning set forth in the recitals to this
Supplemental Indenture.
"Share Components" means the ratios of shares of RMI Common Stock per DECS
specified in clauses (a), (b)(ii) and (c) of the definition of "Exchange Rate"
set forth in this Article.
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"Threshold Appreciation Price" has the meaning specified in the definition
of "Exchange Rate" set forth in this Article.
"Trading Day" means a Business Day on which the security, the Closing Price
of which is being determined, (a) is not suspended from trading on any national
or regional securities exchange or association or over-the-counter market at the
close of business and (b) has traded at least once on the national or regional
securities exchange or association or overthe-counter market that is the primary
market for the trading of such security.
"Transaction Value" means (a) for any cash received in any Adjustment
Event, the amount of cash received per share of RMI Common Stock, (b) for any
Reported Securities received in any Adjustment Event, an amount equal to (x) the
average Closing Price per security of such Reported Securities for the 20
Trading Days immediately prior to Maturity multiplied by (y) the number of such
Reported Securities (as adjusted pursuant to Section 2.04(b)(4)) received per
share of RMI Common Stock and (c) for any property received in any Adjustment
Event other than cash or such Reported Securities, an amount equal to the fair
market value of the property received per share of RMI Common Stock on the date
such property is received, as determined by a nationally recognized investment
banking firm retained for this purpose by the Company; provided, however, that
in the case of clause (b), (i) with respect to securities that are Reported
Securities by virtue of only clause A(iv) of the definition of Reported
Securities, Transaction Value with respect to any such Reported Security means
the average of the mid-point of the last bid and ask prices for such Reported
Security as of Maturity from each of at least three nationally recognized
investment banking firms retained for such purpose by the Company multiplied by
the number of such Reported Securities (as adjusted pursuant to Section
2.04(b)(4)) received per share RMI Common Stock and (ii) with respect to all
other Reported Securities, if there are not 20 Trading Days for any particular
Reported Security occurring later than the 60th calendar day immediately prior
to, but not including, the date of Maturity, Transaction Value with respect to
such Reported Security means the market value per security of such Reported
Security as of Maturity as determined by a nationally recognized investment
banking firm retained for such purpose by the Company multiplied by the number
of such Reported Securities (as adjusted pursuant to Section 2.04(b)(4))
received per share of RMI Common Stock. For purposes of calculating Transaction
Value, any cash, Reported Securities or other property receivable in an
Adjustment Event shall be deemed to have been received immediately prior to the
close of business on the record date for such Adjustment Event or, if there is
no record date for such Adjustment Event, immediately prior to the close of
business on the effective date of such Adjustment Event.
SECTION 1.02. Effect of Headings.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
SECTION 1.03. Successors and Assigns.
All covenants and agreements in this Supplemental Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
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SECTION 1.04. Separability.
In case any provision in this Supplemental Indenture or the DECS shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.05. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Supplemental Indenture
by any of the provisions of the Trust Indenture Act of 1939, as amended, such
required provision shall control.
SECTION 1.06. Benefits of Supplemental Indenture.
Nothing in this Supplemental Indenture, expressed or implied, shall give to
any person, other than the parties hereto and their successors hereunder, and
the holders of the DECS any benefit or any legal or equitable right, remedy or
claim under this Supplemental Indenture.
SECTION 1.07. Application of Supplemental Indenture.
This Supplemental Indenture shall take effect on the date hereof, and shall
apply only to the DECS. This Supplemental Indenture shall have no effect on any
other Debt Securities, whether originally issued prior to the date hereof or
thereafter.
SECTION 1.08. Governing Law.
THIS SUPPLEMENTAL INDENTURE AND THE DECS SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND THIS SUPPLEMENTAL INDENTURE AND
EACH SUCH DECS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
ARTICLE II
THE DECS
SECTION 2.01. Title and Terms.
There is hereby created under the Indenture a series of Debt Securities
known and designated as the "6 3/4% Exchangeable Notes Due February 1, 2000" of
the Company. The aggregate principal amount of DECS that may be authenticated
and delivered under this Indenture is limited to $117,211,950, except for DECS
authenticated and delivered upon reregistration of, transfer of, or in exchange
for, or in lieu of, other DECS pursuant to Sections 2.08, 2.09, 2.11 or 10.04 of
the Indenture.
The Stated Maturity for payment of principal of the DECS shall be February
1, 2000 and the DECS shall bear interest on the principal amount at the rate of
6 3/4% per annum, from the date of original issuance or the most recent Interest
Payment Date to which interest has been paid or duly provided for, payable
quarterly in arrears on February 1, May 1, August 1 and November 1 of each year
(commencing February 1, 1997), to the persons in whose names the DECS (or any
predecessor securities) are registered at the close of business on the 15th day
of the calendar month immediately preceding such Interest Payment Date, provided
that interest payable at Maturity shall be payable to the person to whom the
principal is payable.
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The DECS shall be issuable in denominations of $21.375 and any integral
multiple thereof.
The DECS shall be initially issued in the form of a Global Security and the
Depositary for the DECS shall be The Depository Trust Company, New York, New
York.
The DECS shall not be redeemable prior to their Stated Maturity. The DECS
shall not be subject to any sinking fund.
The Company shall not be obligated to pay any additional amount on the DECS
in respect of taxes, except as otherwise provided in Sections 2.06 and 3.01
hereof.
The form of DECS attached hereto as Exhibit A is hereby adopted, pursuant
to Section 10.01(f) of the Indenture, as a form of Debt Securities of a Series
that consists of DECS.
The DECS shall be mandatorily exchangeable as provided in Section 2.02
hereof.
SECTION 2.02. Exchange at Maturity.
Subject to Section 2.04, at Maturity the principal amount of each DECS
shall be mandatorily exchanged by the Company into a number of shares of RMI
Common Stock (or the equivalent amount of cash, as provided below) at the
Exchange Rate; provided, however, that, pursuant to Section 2.03, no fractional
shares of RMI Common Stock shall be issued. The holders of the DECS shall be
responsible for the payment of any and all brokerage costs upon the subsequent
sale of such shares. The Company may, at its option, in lieu of delivering
shares of RMI Common Stock, deliver cash in an amount (calculated to the nearest
1/100th of a dollar per DECS or, if there is not a nearest 1/100th of a dollar,
then to the next higher 1/ 100th of a dollar) equal to the product of the number
of shares of RMI Common Stock otherwise deliverable on the date of Maturity
multiplied by the Maturity Price; provided, however, that if such option is
exercised, the Company shall deliver cash with respect to all, but not less than
all, of the RMI Common Stock that would otherwise be deliverable, except to
those holders with respect to whom it has determined delivery of cash may
violate applicable state law and as to whom it will deliver shares of RMI Common
Stock as provided herein. In determining the amount of cash deliverable in
exchange for the DECS in lieu of shares of RMI Common Stock pursuant to the
prior sentence hereof, if more than one DECS shall be surrendered for exchange
at one time by the same holder, the amount of cash which shall be delivered upon
exchange shall be computed on the basis of the aggregate number of DECS so
surrendered at Maturity.
SECTION 2.03. No Fractional Shares.
If more than one DECS shall be surrendered for exchange pursuant to Section
2.02 at one time by the same holder, the number of full shares of RMI Common
Stock or Reported Securities which shall be delivered upon such exchange, in
whole or in part, as the case may be, shall be computed on the basis of the
aggregate number of DECS surrendered. No fractional shares or scrip representing
fractional shares of RMI Common Stock or Reported Securities shall be issued or
delivered upon any exchange pursuant to Section 2.02 of any DECS. In lieu of any
fractional shares of RMI Common Stock which, but for the immediately preceding
sentence, would otherwise be deliverable upon such exchange, the Company,
through any applicable Paying Agent, shall make a cash payment in respect of
such fractional interest in an amount equal to the value of such fractional
share at the Maturity Price. The
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<PAGE> 8
Company shall, upon such exchange of any DECS, provide cash to any applicable
Paying Agent in an amount equal to the cash payable with respect to any
fractional shares of RMI Common Stock or Reported Security deliverable upon such
exchange, and the Company shall retain such fractional shares of RMI Common
Stock or Reported Securities.
SECTION 2.04. Adjustment of Exchange Rate.
(a) Adjustment for Distributions, Reclassifications, etc. The Exchange Rate
shall be subject to adjustment from time to time as follows:
(i) If RMI shall, after the date hereof:
(A) pay a stock dividend or make a distribution, in each case,
with respect to RMI Common Stock in shares of RMI Common Stock;
(B) subdivide or split the outstanding shares of RMI Common Stock
into a greater number of shares;
(C) combine the outstanding shares of RMI Common Stock into a
smaller number of shares; or
(D) issue by reclassification (other than a reclassification
pursuant to clause (ii), (iii), (iv) or (v) of the definition of
Adjustment Event) of its shares of RMI Common Stock any shares of
common stock of RMI;
(each of the foregoing, together with the event described in paragraph (a)(ii)
of this Section, a "Dilution Event") then, in any such event, the Exchange
Rate shall be adjusted by adjusting each of the Share Components of the
Exchange Rate in effect immediately prior to such event so that a holder of
any DECS shall be entitled to receive, upon mandatory exchange of the
principal amount of such DECS at Maturity, the number of shares of RMI Common
Stock (or, in the case of a reclassification referred to in clause (D) of this
sentence, the number of other common shares of RMI issued pursuant to such
reclassification) which such holder of such DECS would have owned or been
entitled to receive immediately following such event had such DECS been
exchanged immediately prior to such event or any record date with respect
thereto. Each such adjustment shall become effective at the opening of
business on the Business Day next following the record date for determination
of holders of RMI Common Stock entitled to receive such dividend or
distribution in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision,
split, combination or reclassification. Each such adjustment shall be made
successively.
(ii) If RMI shall, after the date hereof, issue rights or warrants to all
holders of RMI Common Stock entitling them to subscribe for or purchase shares
of RMI Common Stock (other than rights to purchase RMI Common Stock pursuant
to a plan for the reinvestment of dividends or interest) at a price per share
less than the Market Price of RMI Common Stock on the Business Day next
following the record date for the determination of holders of RMI Common Stock
entitled to receive such rights or warrants, then in each case the Exchange
Rate shall be adjusted by multiplying each of the Share Components of the
Exchange Rate in effect on the record date for the issuance of such rights or
warrants by a fraction, of which the numerator shall be (A) the number of
shares of RMI Common Stock outstanding on the record date for the issuance of
such rights or warrants, plus (B) the number of additional shares of RMI
Common Stock offered for subscription or purchase
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<PAGE> 9
pursuant to such rights or warrants, and of which the denominator shall be (x)
the number of shares of RMI Common Stock outstanding on the record date for
the issuance of such rights or warrants, plus (y) the number of additional
shares of RMI Common Stock which the aggregate offering price of the total
number of shares of RMI Common Stock so offered for subscription or purchase
pursuant to such rights or warrants would purchase at the Market Price of the
RMI Common Stock on the Business Day next following the record date for the
determination of holders of RMI Common Stock entitled to receive such rights
or warrants, which number of additional shares shall be determined by
multiplying such total number of shares by the exercise price of such rights
or warrants and dividing the product so obtained by such Market Price. Such
adjustment shall become effective at the opening of business on the Business
Day next following the record date for the determination of holders of RMI
Common Stock entitled to receive such rights or warrants. To the extent that
such rights or warrants expire prior to the Maturity of the DECS and shares of
RMI Common Stock are not delivered pursuant to such rights or warrants prior
to such expiration, the Exchange Rate shall be readjusted to the Exchange Rate
which would then be in effect had such adjustments for the issuance of such
rights or warrants been made upon the basis of delivery of only the number of
shares of RMI Common Stock actually delivered pursuant to such rights or
warrants. Each such adjustment shall be made successively.
(iii) Any shares of RMI Common Stock issuable in payment of a dividend shall
be deemed to have been issued immediately prior to the close of business on
the record date for such dividend for purposes of calculating the number of
outstanding shares of RMI Common Stock under paragraph (a)(ii) of this
Section.
(iv) All adjustments to the Exchange Rate shall be calculated to the nearest
1/10,000th of a share of RMI Common Stock (or if there is not a nearest
1/10,000th of a share, to the next lower 1/10,000th of a share). No adjustment
in the Exchange Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent therein; provided, however, that
any adjustments which by reason of this paragraph (a)(iv) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment.
If an adjustment is made to the Exchange Rate pursuant to paragraphs (a)(i)
or (a)(ii) of this Section, an adjustment shall also be made to the Maturity
Price as such term is used to determine which of clauses (a), (b) or (c) of the
definition of "Exchange Rate" will apply at Maturity and for purposes of
calculating the fraction in sub-clause (b)(i) of the definition of Exchange
Rate. The required adjustment to the Maturity Price shall be made at Maturity by
multiplying the Maturity Price by the cumulative number or fraction determined
pursuant to the Share Component adjustment procedure described above. In the
case of the reclassification of any shares of RMI Common Stock into any common
stock of RMI other than RMI Common Stock, such common stock shall be deemed RMI
Common Stock solely to determine the Maturity Price and to apply the Exchange
Rate at Maturity. Each such adjustment to the Exchange Rate and the Maturity
Price shall be made successively.
(b) Other Adjustment Events. If an Adjustment Event occurs, the property
receivable by holders of DECS at Maturity shall be subject to adjustment from
time to time as follows:
(1) Each holder of a DECS will receive at Maturity, in lieu of or (in
the case of an Adjustment Event described in clause (i) of the definition
thereof) in addition to, each share of RMI Common Stock that it would
otherwise receive as required by Section 2.02,
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<PAGE> 10
cash in an amount equal to (A) if the Maturity Price is greater than or
equal to the Threshold Appreciation Price, 0.8472 multiplied by the
Transaction Value, (B) if the Maturity Price is less than the Threshold
Appreciation Price but greater than the Initial Price, the product of (x)
the Initial Price divided by the Maturity Price multiplied by (y) the
Transaction Value and (C) if the Maturity Price is less than or equal to
the Initial Price, the Transaction Value.
(2) Following an Adjustment Event, the Maturity Price, as such term is
used throughout the definition of Exchange Rate and in subparagraph (b)(1)
above, shall be deemed to equal (A) the Maturity Price of the shares of the
RMI Common Stock, as adjusted pursuant to the provisions of paragraph
(a)(iv) of this Section, plus (B) the Transaction Value.
(3) Notwithstanding the foregoing, with respect to any Reported
Securities received in such Adjustment Event, the Company may, at its
option, in lieu of delivering the amount of cash deliverable in respect of
Reported Securities received in an Adjustment Event, determined in
accordance with subparagraph (b)(1), deliver a number of such Reported
Securities with a value equal to such cash amount, as determined in
accordance with clause (b) of the definition of Transaction Value, as
applicable; provided, however, that (i) if such option is exercised, the
Company shall deliver Reported Securities in respect of all, but not less
than all, cash amounts that would otherwise be deliverable in respect of
Reported Securities received in an Adjustment Event, (ii) the Company may
not exercise such option if the Company has elected to deliver cash in lieu
of the shares of RMI Common Stock, if any, deliverable upon Maturity or if
such Reported Securities have not yet been delivered to the holders
entitled thereto following such Adjustment Event or any record date with
respect thereto and (iii) subject to clause (ii) of this proviso, the
Company must exercise such option if the Company does not elect to deliver
cash in lieu of the shares of RMI Common Stock, if any, deliverable upon
Maturity. If the Company elects to deliver Reported Securities, each holder
of a DECS will be responsible for the payment of any and all brokerage and
other transaction costs upon the sale of such Reported Securities. If,
following any Adjustment Event, any Reported Security ceases to qualify as
a Reported Security, then (x) the Company may no longer elect to deliver
such Reported Security in lieu of an equivalent amount of cash and (y)
notwithstanding clause (b) of the definition of Transaction Value, the
Transaction Value of such Reported Security shall mean the fair market
value of such Reported Security on the date such security ceases to qualify
as a Reported Security, as determined by a nationally recognized investment
banking firm retained for this purpose by the Company.
(4) The amount of cash and/or the kind and number of securities into
which the DECS shall be exchangeable after an Adjustment Event shall be
subject to adjustment following the date of such Adjustment Event in the
same manner and upon the occurrence of the same type of events as described
in paragraphs (a) and (b) of this Section with respect to shares of RMI
Common Stock and RMI.
(5) For purposes of the foregoing, the term "Ordinary Cash Dividend"
means, with respect to any consecutive 365-day period, any dividend with
respect to RMI Common Stock paid in cash to the extent that the amount of
such dividend, together with the aggregate amount of all other dividends on
the RMI Common Stock paid in cash during such 365-day period, does not
exceed on a per share basis 10% of the average of the Closing Prices of RMI
Common Stock over such 365-day period.
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SECTION 2.05. Notice of Adjustments and Certain Other Events.
(a) Whenever the Exchange Rate is adjusted as herein provided or an
Adjustment Event occurs, the Company shall:
(i) forthwith compute the adjusted Exchange Rate (or Transaction
Value) in accordance with Section 2.04 and prepare a certificate signed by
an officer of the Company setting forth the adjusted Exchange Rate (or
Transaction Value), the method of calculation thereof in reasonable detail
and the facts requiring such adjustment and upon which such adjustment is
based, which certificate shall be conclusive, final and binding evidence of
the correctness of the adjustment, and file such certificate forthwith with
the Trustee; and
(ii) within ten Business Days following the occurrence of a
Dilution Event or an Adjustment Event that permits or requires a change in
the consideration to be received by holders pursuant to Section 2.04(b)
(or, in either case, if the Company is not aware of such occurrence, as
soon as practicable after becoming so aware), provide written notice to the
Trustee and to the holders of the outstanding DECS of the occurrence of
such Dilution Event or Adjustment Event, including a statement in
reasonable detail setting forth the method by which any adjustment to the
Exchange Rate or change in the consideration to be received was determined
and setting forth the revised Exchange Rate or consideration, as the case
may be, per DECS; provided, however, that in respect of any adjustment to
the Maturity Price, such notice need only disclose the factor by which the
Maturity Price is to be multiplied pursuant to Section 2.04(a)(iv) in order
to determine which clause of the definition of the Exchange Rate will apply
at Maturity, it being understood that, until Maturity, the Exchange Rate
itself cannot be determined.
(b) In case at any time while any of the DECS are outstanding the Company
receives notice that:
(i) RMI shall declare a dividend (or any other distribution) on
or in respect of the RMI Common Stock to which Section 2.04(a)(i) or (ii)
shall apply (other than any cash dividends and distributions, if any, paid
from time to time by RMI that constitute Ordinary Cash Dividends);
(ii) RMI shall authorize the issuance to all holders of RMI
Common Stock of rights or warrants to subscribe for or purchase shares of
RMI Common Stock or of any other subscription rights or warrants;
(iii) there shall occur any conversion or reclassification of
RMI Common Stock (other than a subdivision or combination of such
outstanding shares of RMI Common Stock) or any consolidation, merger or
reorganization to which RMI is a party and for which approval of any
stockholders of RMI is required, or the sale or transfer of all or
substantially all of the assets of RMI; or
(iv) there shall occur the voluntary or involuntary dissolution,
liquidation or winding up of RMI;
then the Company shall promptly cause to be delivered to the Trustee and any
applicable Paying Agent and filed at the office or agency maintained for the
purpose of exchange of DECS at Maturity in Pittsburgh, Pennsylvania by the
Trustee (or any applicable Paying Agent), and shall promptly cause to be
mailed to the holders of DECS at their last addresses
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as they shall appear upon the registration books of the Debt Securities
registrar, at least ten days before the date hereinafter specified (or the
earlier of the dates hereinafter specified, in the event that more than one is
specified), a notice stating (x) the date on which a record is to be taken for
the purpose of such dividend, distribution or grant of rights or warrants or,
if a record is not to be taken, the date as of which the holders of RMI Common
Stock of record to be entitled to such dividend, distribution or grant of
rights or warrants are to be determined, or (y) the date, if known by the
Company, on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up is expected to become
effective. Following any Adjustment Event, the provisions of this paragraph
(b) shall apply with respect to any Reported Securities in the same manner as
with respect to RMI and the RMI Common Stock.
(c) On or prior to the fourth Business Day preceding the Stated Maturity of
the DECS, the Company shall provide notice to the holders of record of the
DECS and to the Trustee and will publish a notice in a daily newspaper of
national circulation stating whether the Company will deliver, in accordance
with Section 2.02, shares of RMI Common Stock or cash (and/or, in accordance
with Section 2.04(b), cash or Reported Securities) upon the mandatory exchange
of the principal amount of the DECS; provided, however, in the event the
Company intends to deliver cash, the Company shall have the right to require
certification as to the domicile and residency of each beneficial holder of
DECS, as a condition to delivery of such cash. After the close of business on
the Business Day immediately preceding the Stated Maturity of the DECS, the
Company shall notify the Trustee in writing of the number of shares of RMI
Common Stock and/or Reported Securities, or the amount of cash to be paid per
DECS.
SECTION 2.06. Taxes.
(a) The Company will pay any and all documentary, stamp, transfer or
similar taxes that may be payable in respect of the transfer and delivery of RMI
Common Stock (or Reported Securities) pursuant hereto; provided, however, that
the Company shall not be required to pay any such tax which may be payable in
respect of any transfer involved in the delivery of RMI Common Stock (or
Reported Securities) in a name other than that in which the DECS so exchanged
were registered, and no such transfer or delivery shall be made unless and until
the person requesting such transfer has paid to the Company the amount of any
such tax, or has established, to the satisfaction of the Company, that such tax
has been paid.
(b) The parties hereto hereby agree, and each holder of a DECS by its
purchase of a DECS hereby agrees (in the absence of an administrative
determination or judicial ruling to the contrary):
(i) to treat, for U.S. federal income tax purposes, each DECS as a
forward purchase contract to purchase RMI Common Stock at Maturity
(including as a result of acceleration or otherwise) (the "forward purchase
contract characterization"), under the terms of which contract (a) at the
time of issuance of the DECS the holder deposits irrevocably with the
Company a fixed amount of cash equal to the purchase price of the DECS to
assure the fulfillment of the holder's purchase obligation described in
clause (c) below, which deposit will unconditionally and irrevocably be
applied at Maturity to satisfy such obligation, (b) until Maturity the
Company will be obligated to pay interest on such deposit at a rate equal
to the stated rate of interest on the DECS as compensation to the holder
for the Company's use of such cash deposit during the term of the DECS,
-11-
<PAGE> 13
and (c) at Maturity such cash deposit unconditionally and irrevocably will
be applied by the Company in full satisfaction of the holder's obligation
under the forward purchase contract, and the Company will deliver to the
holder the number of shares of RMI Common Stock that the holder is entitled
to receive at that time pursuant to the terms of the DECS (subject to the
Company's right to deliver cash in lieu of shares of RMI Common Stock);
(ii) to treat, consistent with the above characterization, (x) amounts
paid to the Company in respect of the original issue of a DECS as allocable
in their entirety to the amount of the cash deposit attributable to such
DECS, and (y) amounts denominated as interest that are payable with respect
to the DECS as interest payable on the amount of such deposit, includible
annually in the income of the holder as interest income in accordance with
its method of accounting; and
(iii) to file all U.S. federal, state and local income and franchise
tax returns consistent with the forward purchase contract characterization
(unless required otherwise by an applicable taxing authority).
SECTION 2.07. Delivery of Securities upon Maturity.
All shares of RMI Common Stock and Reported Securities deliverable to
holders upon the Maturity of the DECS shall be delivered to such holders,
whenever practicable, in such manner (such as by book-entry transfer) so as to
assure same-day transfer of such securities to holders and otherwise in the
manner customary at such time for delivery of such securities and securities of
the same type.
ARTICLE III
COVENANTS
SECTION 3.01. Shares Free and Clear.
With respect to the DECS only and for the benefit of only the holders
thereof, the Company covenants and warrants, unless the Company elects to
deliver cash in lieu of RMI Common Stock, that upon exchange of a DECS at
Maturity pursuant to the Indenture and this Supplemental Indenture, the holder
of a DECS shall receive good and valid title to the RMI Common Stock and, in the
event an Adjustment Event has occurred, the Reported Securities (unless the
Company elects to deliver cash in lieu of Reported Securities) for which such
DECS is at such time exchangeable pursuant to this Indenture, free and clear of
all liens, encumbrances, equities and claims whatsoever. Except as provided in
Section 2.06(a), the Company shall pay all taxes and charges with respect to the
delivery of RMI Common Stock (and Reported Securities) delivered in exchange for
DECS hereunder. In addition, the Company further warrants that any shares of RMI
Common Stock (and Reported Securities) delivered in exchange for DECS hereunder
shall be free of any transfer restrictions (other than such as are solely
attributable to any holder's status as an affiliate of RMI or the issuer of such
Reported Securities).
SECTION 3.02. Discharge of Indenture.
The provisions of Sections 12.02(b) and 12.02(c) of the Indenture with
respect to the DECS shall not be applicable.
-12-
<PAGE> 14
SECTION 3.03. Change in Control.
The provisions of Sections 4.07, 4.08 and 4.09 of the Indenture with
respect to Change in Control of the Company shall not be applicable with respect
to the DECS.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Confirmation of Indenture.
The Indenture, as supplemented and amended by this Supplemental Indenture
and all other indentures supplemental thereto, is in all respects ratified and
confirmed, and the Indenture, this Supplemental Indenture and all indentures
supplemental thereto shall be read, taken and construed as one and the same
instrument.
SECTION 4.02. Concerning the Trustee.
The Trustee assumes no duties, responsibilities or liabilities by reason of
this Supplemental Indenture other than as set forth in the Indenture.
---------------------------------
This Supplemental Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
-13-
<PAGE> 15
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
USX CORPORATION
By:
-----------------------------------
Name:
Title:
Attest:
-----------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
-----------------------------------
Name:
Title:
Attest:
-----------------------------------
Name:
Title:
-14-
<PAGE> 16
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF ALLEGHENY
On the day of December, 1996, before me personally came
, to me known, who, being by me duly sworn, did depose and
say that she/he is the of USX CORPORATION, one of the parties
described in and which executed the above instrument; that she/he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the board of directors of said
corporation, and that she/he signed her/his name thereto by like authority.
-------------------------------------
NOTARY PUBLIC
SEAL
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF ALLEGHENY
On the th day of November, 1996, before me personally came
, to me known, who, being by me duly sworn, did depose and
say that he is the of PNC Bank, National Association, one of the
corporations described in and which executed the above instrument; that she/he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the board of
directors of said corporation, and that she/he signed her/his name thereto by
like authority.
-------------------------------------
NOTARY PUBLIC
SEAL
SS.:
SS.:
<PAGE> 17
EXHIBIT A
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of the Depositary or a
nominee of a Depositary. This Security is exchangeable for Securities registered
in the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Indenture, and may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary.
Unless this Security is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the Company or
its agent for registration of transfer, exchange or payment, and any security
issued is registered in the name of Cede & Co., or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.
NO. CUSIP NO.
[FORM OF FACE OF DECS]
USX CORPORATION
DECSSM
(DEBT EXCHANGEABLE FOR COMMON STOCKSM)
6 3/4% EXCHANGEABLE NOTE DUE FEBRUARY 1, 2000
(Subject to Exchange at Maturity into Common Stock,
Par Value $.01 Per Share, of RMI Titanium Company)
USX Corporation, a corporation duly organized and existing under the laws
of Delaware (hereinafter called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to Cede & Co., or registered assigns, the principal sum
of Dollars (or $21.375 for each Debt Exchangeable for Common Stock
(each, a "DECS") represented by this note) on February 1, 2000 (subject to the
mandatory exchange provisions at Maturity described below), and to pay interest
thereon (computed on the basis of a 360-day year of twelve 30-day months) on
such principal amount from the date of original issuance or from the most recent
Interest Payment Date (as defined below) to which interest has been paid or duly
provided for, quarterly in arrears on February 1, May 1, August 1 and November 1
of each year (each, an "Interest Payment Date" and, collectively, the "Interest
Payment Dates"), commencing February 1, 1997, at the rate per annum specified in
the title of this note, until the principal hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this DECS (or the DECS in exchange or substitution for
which this DECS was issued) is registered at the close of business on the
Regular Record Date (as defined below) for interest payable on such Interest
Payment Date. The Regular Record Date for any interest payment is the close of
business on the 15th day of the calendar month immediately preceding the
relevant Interest Payment Date, whether or not a Business Day (as defined
below),
<PAGE> 18
provided that interest payable at Maturity shall be payable to the person to
whom the principal hereof is payable. In any case where such Interest Payment
Date shall be a day, in the City of Pittsburgh or The City of New York, that is
a Sunday or a legal holiday or a day on which banking institutions are
authorized to close, then (notwithstanding any other provision of said Indenture
or this DECS) payment of such interest need not be made on such date, but may be
made on the next succeeding business day with the same force and effect as if
made on such Interest Payment Date, and, if such payment is so made, no interest
shall accrue for the period from and after such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the holder on such Regular Record Date, and may either be paid to the
Person in whose name this DECS (or the DECS in exchange or substitution for
which this DECS was issued) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to holders of the DECS not less than 15
days prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the DECS may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
At Maturity, the principal amount of this DECS will be mandatorily
exchanged into a number of shares of common stock, par value $.01 per share (the
"RMI Common Stock"), of RMI Titanium Company ("RMI") at the Exchange Rate (as
defined below) or an equivalent amount of cash. The "Exchange Rate" is equal to
(a) if the Maturity Price (as defined below) is greater than or equal to $25.23
(the "Threshold Appreciation Price"), 0.8472 shares of RMI Common Stock per
DECS, (b) if the Maturity Price is less than the Threshold Appreciation Price
but is greater than $21.375 (the "Initial Price"), (i) a fraction equal to the
Initial Price divided by the Maturity Price of (ii) one share of RMI Common
Stock per DECS (such fractional share being calculated to the nearest 1/10,000th
of a share or, if there is not a nearest 1/10,000th of a share, to the next
lower 1/10,000th of a share) and (c) if the Maturity Price is less than or equal
to the Initial Price, one share of RMI Common Stock per DECS. ACCORDINGLY, THE
VALUE OF THE SHARES OF RMI COMMON STOCK TO BE RECEIVED BY HOLDERS OF THE DECS
(OR, AS DISCUSSED BELOW, THE CASH EQUIVALENT THAT MAY BE RECEIVED IN LIEU OF
SUCH SHARES) AT MATURITY WILL NOT NECESSARILY EQUAL THE PRINCIPAL AMOUNT OF SUCH
DECS. Any shares of RMI Common Stock delivered by the Company to the holders of
the DECS that are not affiliated with RMI shall be free of any transfer
restrictions, and the holders of DECS will be responsible for the payment of any
and all brokerage costs upon the subsequent sale of such shares. No fractional
shares of RMI Common Stock will be issued at Maturity as provided in the
Indenture.
The Company may at its option, in lieu of delivering shares of RMI Common
Stock, deliver cash in an amount equal to the value of such number of shares of
RMI Common Stock at the Maturity Price as provided in the Indenture; provided,
however, that if such option is exercised, the Company shall deliver cash with
respect to all, but not less than all, of the shares of RMI Common Stock that
would otherwise be deliverable, except to those holders with respect to whom it
has determined delivery of cash may violate applicable state law and as to whom
it will deliver shares of RMI Common Stock as provided herein.
Notwithstanding the foregoing, (i) in the case of certain Dilution Events,
the Exchange Rate and the Maturity Price will be subject to adjustment and (ii)
in the case of certain
F-2
<PAGE> 19
Adjustment Events, the consideration received by holders of DECS at Maturity
will be shares of RMI Common Stock, other securities and/or cash, each as
provided in the Indenture.
The "Maturity Price" is defined as the average Closing Price per share of
RMI Common Stock for the 20 Trading Days immediately prior to (but not
including) the date of Maturity or, under certain circumstances, the market
value per share of RMI Common Stock as of the date of Maturity as determined by
a nationally recognized investment banking firm retained for this purpose by the
Company, as provided in the Indenture. The "Closing Price" of any security on
any date of determination means (i) the closing sale price (or, if no closing
sale price is reported, the last reported sale price) of such security (regular
way) on the New York Stock Exchange (the "NYSE") on such date, (ii) if such
security is not listed for trading on the NYSE on any such date, as reported in
the composite transactions for the principal United States securities exchange
on which such security is so listed, (iii) if such security is not so listed on
a United States national or regional securities exchange, as reported by the
Nasdaq Stock Market, (iv) if such security is not so reported, the last quoted
bid price for such security in the over-the-counter market as reported by the
National Quotation Bureau or similar organization or (v) if such security is not
so quoted, the average of the mid-point of the last bid and ask prices for such
security from each of at least three nationally recognized investment banking
firms selected for such purpose by the Company. A "Trading Day" means a Business
Day on which the security the Closing Price of which is being determined (i) is
not suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (ii) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of such security. "Business Day" means any day that is not a Saturday, a
Sunday or a day on which the NYSE or banking institutions or trust companies in
The City of New York, New York are authorized or obligated by law or executive
order to close.
Interest on this DECS will be payable, and delivery of shares of RMI Common
Stock (or, at the Company's option, cash in an amount equal to the value of such
RMI Common Stock and/or such other consideration as permitted or required
herein) in exchange for the principal amount of this DECS at Maturity will be
made upon surrender of this DECS, at the office or agency of the Company
maintained for that purpose in Pittsburgh, Pennsylvania and payment of interest
on (and, if the Company elects not to deliver RMI Common Stock and/or other
securities upon exchange at Maturity, the cash equivalent thereof payable upon
exchange for the principal amount of) this DECS will be made in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company, payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
register for the DECS.
Reference is hereby made to the further provisions of this DECS set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee referred to on the reverse hereof by manual signature,
this DECS shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose. "DECS" and "Debt Exchangeable for Common Stock"
are service marks of Salomon Brothers Inc.
F-3
<PAGE> 20
IN WITNESS WHEREOF, USX Corporation has caused this instrument to be duly
executed under its corporate seal.
Dated: USX CORPORATION
By:
-----------------------------------
Name:
Title:
Attest:
Name:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated therein referred to in
the within-mentioned Indenture.
PNC BANK, NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------
Authorized Officer
F-4
<PAGE> 21
[FORM OF REVERSE OF DECS]
USX CORPORATION
6 3/4% EXCHANGEABLE NOTE DUE FEBRUARY 1, 2000
(Subject to Exchange at Maturity into Common Stock,
Par Value $.01 Per Share, of RMI Titanium Company)
This DECS is one of a duly authorized issue of securities of the Company
(hereinafter called the "Securities") issued and to be issued in one or more
Series under an Indenture, dated as of March 15, 1993, as supplemented by the
First Supplemental Indenture dated December 3, 1996 (as so supplemented and as
may be further supplemented from time to time, the "Indenture") between the
Company and PNC Bank, National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all other indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitation of rights,
duties and immunities thereunder of the Company, the Trustee and the holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This DECS is one of a Series of the Securities
designated on the face hereof, limited in aggregate principal amount to
$ .
The DECS may not be redeemed and are not entitled to the benefit of any
sinking fund.
The provisions of Sections 12.02(b) and 12.02(c) of the Indenture with
respect to defeasance of the Debt Securities of a Series and covenant defeasance
of the Debt Securities of a Series, respectively, shall not be applicable to the
DECS, as provided in a supplement to the Indenture.
The provisions of Sections 4.07, 4.08 and 4.09 of the Indenture with
respect to a Change in Control of the Company shall not be applicable to the
DECS.
If an Event of Default with respect to the DECS shall occur and be
continuing, the principal of all DECS may be declared due and payable and
therefore will result in the mandatory exchange of the principal amount thereof
for RMI Common Stock (or, at the Company's option, cash and/or such other
consideration as permitted or required herein), all in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee to
modify the Indenture or any supplemental indenture without the consent of the
holders of the Securities in regard to matters including, without limitation,
the following: (a) to evidence the succession of another corporation to the
Company; (b) to add to the covenants of the Company further covenants,
restrictions, conditions or provisions; (c) to cure any ambiguity in, or to
correct or supplement any provision of, the Indenture as shall not adversely
affect the interests of the holders of the Securities; (d) to add to, change or
eliminate any of the provisions of the Indenture in respect of one or more
series of Debt Securities thereunder, under certain conditions specified
therein; (e) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee; (f) to evidence the appointment of a successor Trustee; and
(g) to establish additional Series of Securities which may be issued pursuant to
the Indenture. The Indenture also permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the holders of the Securities of
each Series to be affected under the Indenture at any time by the Company
<PAGE> 22
and the Trustee with the consent of the holders of 66-2/3% in principal amount
of the Securities at the time outstanding of each Series to be affected. The
Indenture also contains provisions permitting the holders of specified
percentages in principal amount of the Securities of each Series at the time
outstanding, on behalf of the holders of all Securities of such Series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the holder of this DECS shall be conclusive and binding upon such
holder and upon all future holders of this DECS and of any Security issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this DECS.
As provided in and subject to the provisions of the Indenture, the holder
of this DECS shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
DECS, the holders of not less then 25% in principal amount of the DECS then
outstanding shall have made written request upon the Trustee to institute such
proceeding as trustee and offered the Trustee reasonable indemnity and the
Trustee shall not have received from the holders of a majority in principal
amount of the DECS at the time outstanding a direction inconsistent with such
request, and shall have failed to institute such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the holder of this DECS for the enforcement of
any payment of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein or, subject to compliance with the
Indenture, the Change in Control Purchase Price on or after the date as and when
the same shall become due and payable pursuant to Section 4.07 of the Indenture.
No reference herein to the Indenture and no provision of this DECS or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this DECS at
the times, place and rate, and in the manner, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, this DECS is transferable in the Debt Security register, upon surrender
of this DECS for registration of transfer at the office or agency of the Company
in any place where the principal of and interest on this DECS are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Debt Security registrar duly executed by,
the holder hereof or his attorney duly authorized in writing, and thereupon one
or more new DECS, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
DECS are issuable only in registered form without coupons in denominations
of $21.375 and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, DECS are exchangeable for a
like aggregate principal amount of DECS and of like tenor of a different
authorized denomination, as requested by the holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
R-2
<PAGE> 23
Prior to due presentment of this DECS for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this DECS is registered as the owner hereof for all
purposes, whether or not this DECS be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this DECS which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
THIS DECS SHALL FOR ALL PURPOSES BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
R-3
<PAGE> 24
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C> <C>
TEN COM--as tenants in common UNIF GIFT MIN ACT-- Custodian
TEN ENT--as tenants by the entireties --------- ----------
JT TEN -- as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants
in common Under Uniform Gifts to Minors Act
---------------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please insert Social Security or
Taxpayer I.D. or
other Identifying Number of Assignee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please Print or Type Name and Address including Postal Zip Code of Assignee
- --------------------------------------------------------------------------------
the within DECS and all rights thereunder, hereby irrevocably constituting and
appointing
attorney
- ---------------------------------------------------------------------
to transfer said DECS on the books of USX Corporation with full power of
substitution in the premises.
Dated:
---------------------------------- -------------------------------------
Signature
-------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within DECS in every particular,
without alteration or enlargement or
any change whatsoever.
NOTICE: Signature(s) must be
guaranteed by a member of an Approved
Signature Guaranty Medallion Program.
R-4
<PAGE> 1
Exhibit 23.3
MILLER & CHEVALIER
Chartered
655 Fifteenth Street, N.W. Suite 900
Washington, D.C. 20005-5701
(202) 626-5800 Facsimile (202) 626-0856
Thomas W. Mahoney, Jr.
(202) 626-5847 November 26, 1996
USX Corporation
600 Grant Street
Pittsburgh, PA 15219
Gentlemen:
We hereby consent to being named as Tax Counsel under "Certain United
States Federal Income Tax Considerations" and "Legal Opinions" in the Final
USX Prospectus constituting part of this Registration Statement on Form S-3
(File NO. 33-52937).
Very truly yours,
MILLER & CHEVALIER, CHARTERED
By: /s/ THOMAS W. MAHONEY, JR.
--------------------------
Thomas W. Mahoney, Jr.
