<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 18, 1997
REGISTRATION NO. 333-32541
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
COMMONWEALTH INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 13-3245741
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
500 WEST JEFFERSON STREET, 19TH FLOOR
LOUISVILLE, KENTUCKY 40202-2823
(502) 589-8100
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
------------------------------
MARK V. KAMINSKI
PRESIDENT AND CHIEF EXECUTIVE OFFICER
COMMONWEALTH INDUSTRIES, INC.
500 WEST JEFFERSON STREET, 19TH FLOOR
LOUISVILLE, KENTUCKY 40202-2823
(502) 589-8100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
Copies to:
<TABLE>
<S> <C>
ROBERT W. DOWNES WINTHROP B. CONRAD, JR.
SULLIVAN & CROMWELL DAVIS POLK & WARDWELL
125 BROAD STREET 450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10004-2498 NEW YORK, NEW YORK 10017
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE ON OR AFTER THE EFFECTIVE DATE OF THIS REGISTRATION
STATEMENT.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
- --------
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
- --------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
The following are the estimated expenses of the issuance and distribution of
the securities being registered, all of which will be paid by the Company.
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee.............................. $ 35,176
NASD filing fee................................... 12,000
Blue sky fees and expenses........................ 5,000
Printing and engraving expenses................... 150,000
Legal fees and expenses........................... 200,000
Accounting fees and expenses...................... 75,000
Miscellaneous..................................... 122,824
---------
Total....................................... $ 600,000
---------
---------
</TABLE>
- ------------------------
* All amounts are estimated except for the SEC registration fee and NASD filing
fee.
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation--a "derivative action"), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
rights to which those seeking indemnification may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise. The
Company's By-Laws provide that the Company shall indemnify its directors and
officers to the fullest extent permitted by Delaware law.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
payments of unlawful dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit. The Company's Certificate of Incorporation provides for such limitation
of liability.
Reference is also made to Section 7 of the Underwriting Agreement to be
filed as Exhibit 1.1 to the Registration Statement for information concerning
the Underwriters' obligation to indemnify the Registrant and its officers and
directors in certain circumstances.
II-1
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
<S> <C>
1.1 Form of Underwriting Agreement.
4.1 Restated Certificate of Incorporation, effective April 18, 1997 (incorporated by
reference to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997).
4.2 By-Laws (incorporated by reference to Exhibit 3.3 to the Company's Registration
Statement No. 33-87294 on Form S-1).
4.3 Stockholder Protection Rights Agreement, dated as of March 6, 1996, including forms of
Rights Certificate, Election to Exercise and Certificate of Designation and Terms of
Participating Preferred Stock of the Company (incorporated by reference to Exhibits
(1), (2) and (3) to the Company's Registration Statement No. 0-25642 on Form 8-A).
5.1 Opinion and consent of Sullivan & Cromwell.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Sullivan & Cromwell (included in 5.1 above).
24.1 Power of Attorney.*
</TABLE>
- ------------------------
* Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant, pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by any such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether or not
such indemnification is against public policy as expressed in the Securities Act
of 1933 and will be governed by the final adjudication of such issue.
II-2
<PAGE>
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act of 1933 shall be deemed to be part of
this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial BONA FIDE offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Louisville and State of Kentucky, on the 18th
day of September, 1997.
COMMONWEALTH INDUSTRIES, INC.
BY: /S/ MARK V. KAMINSKI
-----------------------------------------
Mark V. Kaminski
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement has been signed by the following persons in the
capacities indicated on September 18, 1997.
SIGNATURE TITLE
- ------------------------------ ---------------------------
* Chairman of the Board
- ------------------------------
Paul E. Lego
President, Chief Executive
/s/ MARK V. KAMINSKI Officer and Director
- ------------------------------ (Principal Executive
Mark V. Kaminski Officer)
Executive Vice President,
/s/ DONALD L. MARSH, JR. Chief Financial Officer
- ------------------------------ and Secretary (Principal
Donald L. Marsh, Jr. Financial and Accounting
Officer)
* Director
- ------------------------------
Catherine G. Burke
* Director
- ------------------------------
C. Frederick Fetterolf
/s/ JOHN E. MEROW Director
- ------------------------------
John E. Merow
* Director
- ------------------------------
Victor Torasso
<TABLE>
<S> <C> <C>
* By: /s/ DONALD L. MARSH, JR. Attorney-in-Fact
-----------------------------------
Donald L. Marsh, Jr.
</TABLE>
II-4
<PAGE>
Exhibit 1.1
5,000,000 Shares
COMMONWEALTH INDUSTRIES, INC.
Common Stock, $0.01 par value
UNDERWRITING AGREEMENT
__________, 19__
<PAGE>
_____________, 19__
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith Incorporated
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
Commonwealth Industries Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters named in Schedule I
hereto (the "Underwriters"), an aggregate of 5,000,000 shares of the common
stock, $0.01 par value, of the Company (the "Firm Shares").
The Company also proposes to issue and sell to the several Underwriters
not more than an additional 750,000 shares of its common stock, $0.01 par
value (the "Additional Shares"), if and to the extent that you, as managers
of the offering, shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such shares of common stock granted to
the Underwriters in Section 2 hereof. The terms "Firm Shares" and
"Additional Shares" shall in be deemed each case to include the rights to
purchase Participating Preferred Stock. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "Shares." The shares
of common stock, $0.01 par value, of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "Common Stock."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-32541),
including a prospectus, relating to the Shares. The registration statement
as amended at the time it becomes effective, including the information (if
any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Securities Act of 1933, as
amended (the "Securities Act"), is hereinafter referred to as the
"Registration Statement"; the prospectus in the form first used to confirm
sales of Shares is hereinafter referred to as the "Prospectus" (including, in
the case of all references to the Registration Statement or the Prospectus,
unless the context requires otherwise, documents incorporated by reference
therein). If the Company has filed an abbreviated
1
<PAGE>
registration statement to register additional shares of Common Stock
pursuant to Rule 462(b) under the Securities Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462 Registration Statement.
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b)(i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the applicable
rules and regulations of the Commission thereunder,(ii) the Registration
Statement, when it became effective, did not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading,(iii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations
and warranties set forth in this paragraph 1(b) do not apply to
statements or omissions in the Registration Statement or the Prospectus
based upon information furnished to the Company in writing by any
Underwriter expressly for use therein.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the state of Delaware,
has the corporate power and authority to own its property and to conduct
its business as described in the Prospectus, except where the failure to
have such power would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole, and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct
2
<PAGE>
of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
by the Company, free and clear of all liens, encumbrances, equities or
claims other than the pledge to National Westminster Bank Plc, as
administrative agent ("NatWest"), under the Commonwealth Amended and
Restated Pledge and Security Agreement dated as of November 29, 1996
(the "Pledge Agreement").
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The authorized capital stock of the Company is as set forth
in the Prospectus under the caption "Capitalization".
(g) The shares of Common Stock outstanding prior to the issuance
of the Shares have been duly authorized and validly issued, and are
fully paid and non-assessable.
(h) The Shares have been duly authorized and, when issued and
paid for in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and such Shares will not be
subject to any preemptive rights of any stockholder of the Company in
connection with the transactions contemplated by this Agreement.
(i) Neither the Company nor any of its subsidiaries is in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any other agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, in each
case, except for
3
<PAGE>
such defaults that would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; the execution and
delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement will not (i) violate the certificate
of incorporation or by-laws of the Company or any of its subsidiaries,
(ii) result in a default under or breach of or result in the creation or
imposition of any lien or encumbrance on the assets or liabilities of
the Company or any of its subsidiaries under any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, (iii)
violate any law applicable to the Company or its subsidiaries, or (iv)
violate any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any subsidiary, except
in each case, for such violations that would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may be
required by the Securities Act or the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Shares.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(k) The Company and its subsidiaries each owns, possesses or has
obtained all material governmental licenses, permits, certificates,
consents, orders, approvals and other material authorizations necessary
to own or lease, as the case may be, and to operate its properties and
to carry on its business as presently conducted, and neither the Company
nor any of its subsidiaries has received any notice of proceedings
relating to revocation or modification of any such licenses, permits,
certificates, consents, orders, approvals or authorizations, except for
any revocation or modification that would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(l) Except as described in the Registration Statement or the
Prospectus, there are no legal or governmental proceedings pending or,
to the actual knowledge of the Company, threatened to which the Company
or any subsidiary is a party or to which any of the properties of the
4
<PAGE>
Company or any subsidiary is subject, which, if adversely decided, would
have a material adverse effect on the Company and its subsidiaries,
taken as a whole, or on the power or ability of the Company to perform
any of its obligations under this Agreement.
(m) The unaudited pro forma condensed consolidated statement of
operations and the related notes thereto set forth in the Registration
Statement and the Prospectus with respect to the Company has been
prepared in accordance with the applicable requirements of Rule 11-02 of
Regulation S-X promulgated under the Exchange Act, have been compiled on
the pro forma basis described therein and, in the opinion of the
Company, the assumptions used in the preparation thereof are reasonable
and the adjustments used therein are based upon good faith estimates and
assumptions believed by the Company to be reasonable.
(n) Each preliminary prospectus filed as part of the
registration statement on Form S-3 as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 or Rule 462 under the
Securities Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder.
(o) The Company is not and, after giving effect to the offering
and sale of the Shares and the application of the proceeds therefrom as
described in the Prospectus, will not be an "investment company", within
the meaning of the Investment Company Act of 1940, as amended.
(p) Except as disclosed in the Registration Statement or the
Prospectus or except as would not reasonably be expected to individually
or in the aggregate have a material adverse effect on the financial
condition, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole, (i) the Company and its
subsidiaries are each in compliance with all applicable Environmental
Laws, (ii) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (iii) there are
no pending or, to the knowledge of the Company, threatened Environmental
Claims against the Company or any of its subsidiaries, and (iv) there
are no past or present events, conditions, circumstances, activities,
practices, incidents, actions or plans required to be disclosed in the
Registration Statement or the Prospectus which could reasonably be
expected to materially interfere with or prevent compliance by the
Company or any of its subsidiaries with any Environmental Law, or which
could
5
<PAGE>
reasonably be expected to give rise to any liability under any
Environmental Law, or which could reasonably be expected to form the
basis of any Environmental Claim, based on or primarily related to the
manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport, shipping or handling, or the arrangement
for treatment or disposal or the emission, discharge, release or
threatened release into the environment, of any Hazardous Substance.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any applicable United
States federal, state, local or municipal statute, law, rule,
regulation, ordinance, code or enforceable policy and any judicial or
administrative interpretation thereof including any judicial or
administrative order, consent decree or judgment, relating to (i) the
environment or (ii) any Hazardous Substance; "Environmental Claims"
means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigations or proceedings relating in any way to any
Environmental Law; and "Hazardous Substance" means any substance
presently listed, defined, designated or classified as hazardous, toxic,
radioactive or dangerous, or otherwise regulated, under any
Environmental Law, whether by type or by quantity, and any substance
containing any such substance as a component, including, without
limitation, any toxic waste, pollutant, contaminant, hazardous
substance, toxic substance, hazardous waste, special waste, industrial
substance or petroleum or any derivative or by-product thereof, radon,
radioactive material, asbestos, asbestos-containing material, urea
formaldehyde foam insulation, lead or polychlorinated biphenyl to the
extent any such substance is presently so listed, defined, designated or
classified, or otherwise regulated under any Environmental Law.
(q) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company
to file a registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration Statement.
2. Agreements to Sell and Purchase. The Company hereby agrees to
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company the respective numbers of Firm Shares set forth in Schedule
I hereto opposite its name at $______ a share (the "Purchase Price").
6
<PAGE>
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to
sell to the Underwriters the Additional Shares, and the Underwriters shall
have a one-time right to purchase, severally and not jointly, up to 750,000
Additional Shares at the Purchase Price. If you, on behalf of the
Underwriters, elect to exercise such option, you shall so notify the Company
in writing not later than 30 days after the date of this Agreement, which
notice shall specify the number of Additional Shares to be purchased by the
Underwriters and the date on which such shares are to be purchased. Such
date may be the same as the Closing Date (as defined below) but not earlier
than the Closing Date nor earlier than three business days or later than ten
business days after the date of such notice. Additional Shares may be
purchased as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If
any Additional Shares are to be purchased, each Underwriter agrees, severally
and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears
the same proportion to the total number of Additional Shares to be purchased
as the number of Firm Shares set forth in Schedule I hereto opposite the name
of such Underwriter bears to the total number of Firm Shares.
The Company hereby agrees that, without the prior written consent of
Morgan Stanley & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
to purchase, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Shares to be sold hereunder,
(B) the issuance by the Company of options under its benefit plans existing
on the date hereof or (C) the issuance by the Company of shares of Common
Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof of which the Underwriters have been
advised in writing.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the Registration Statement and this Agreement
have become effective as in your judgment is advisable. The Company is
further advised by you that the Shares are to be offered to the public
initially at $___ a share (the "Public Offering Price") and to certain
dealers selected by you at a price that
7
<PAGE>
represents a concession not in excess of $____ a share under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $___ a share, to any Underwriter or
to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be made
by wire transfer of Federal or other funds immediately available in New York
City against delivery of such Firm Shares for the respective accounts of the
several Underwriters at 10:00 a.m., New York City time, on ____________,
19__, or at such other time on the same or such other date, not later than
_________, 19__, as shall be designated in writing by you. The time and date
of such payment are hereinafter referred to as the "Closing Date."
Payment for any Additional Shares shall be made to the Company by wire
transfer of Federal or other funds immediately available in New York City
against delivery of such Additional Shares for the respective accounts of the
several Underwriters at the offices of Sullivan & Cromwell, 125 Broad Street,
New York, New York 10004 at 10:00 a.m., New York City time, on the date
specified in the notice described in Section 2 or at such other time on the
same or on such other date, in any event not later than _______, 19__, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Option Closing Date."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The
certificates evidencing the Firm Shares and Additional Shares shall be
delivered to you on the Closing Date or the Option Closing Date, as the case
may be, for the respective accounts of the several Underwriters, with any
transfer taxes payable in connection with the transfer of the Shares to the
Underwriters duly paid, against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of
the Company to sell the Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the condition that the Registration Statement
shall have become effective on the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
8
<PAGE>
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of
the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 5(a)(i) above and to the effect that
the representations and warranties of the Company contained in this Agreement
are true and correct as of the Closing Date and that the Company has complied in
all material respects with all of the agreements and satisfied all of the
conditions in all material respects on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Sullivan & Cromwell, counsel for the Company, dated the
Closing Date, to the effect that:
(i) Each of the Company, Commonwealth Aluminum Corporation,
CI Holdings, Inc., Commonwealth Aluminum Sales Corporation and
Alflex Corporation has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware;
9
<PAGE>
(ii) Each of Commonwealth Aluminum Corporation and Alflex
Corporation has the corporate power and authority under the laws of
the State of Delaware to own, lease and operate its properties and
conduct its business as described in the Registration Statement and
the Prospectus;
(iii) Commonwealth Aluminum Corporation is duly qualified to
transact business as a foreign corporation and is in good standing
in the Commonwealth of Kentucky;
(iv) Commonwealth Aluminum Sales Corporation is duly
qualified to transact business as a foreign corporation and is in
good standing in the Commonwealth of Kentucky and the States of
Illinois and California;
(v) the authorized capital stock of the Company is as set
forth in the Prospectus under the caption "Capitalization";
(vi) the shares of Common Stock outstanding prior to the
issuance of the Shares have been duly authorized and are validly
issued, fully paid and non-assessable;
(vii) all of the issued shares of capital stock of each
subsidiary of the Company have been duly authorized and validly
issued, are fully paid and non-assessable and are owned by the
Company, free and clear of all liens, encumbrances, equities or
claims other than the pledge to NatWest under the Pledge Agreement;
(viii) the Shares have been duly authorized and, when issued
and paid for in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and such Shares will
not be issued in violation of the preemptive rights of any
stockholder of the Company;
(ix) this Agreement has been duly authorized, executed and
delivered by the Company;
(x) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not (i) violate the certificate of incorporation or by-laws of
the Company, (ii) result in a default under or breach of or result
in the creation or imposition of any lien or encumbrance
10
<PAGE>
upon any property or assets of the Company under the agreements
listed in Part IV, Item 14(c), Exhibit Numbers 3.3 and 10.1 through
10.7 of the Company's Annual Report on Form 10-K for the year ended
December 31, 1996, (iii) violate any judgment, order or decree of
any government, governmental instrumentality or court having
jurisdiction over the Company or any of its properties, known to
such counsel, or (iv) violate any Federal law of the United States
or law of the State of New York applicable to the Company or the
Delaware General Corporation Law; provided, however, that for the
purposes of this paragraph (x), such counsel need express no opinion
with respect to Federal or state securities laws or other antifraud
laws; provided, further, that insofar as performance by the Company
of its obligations under this Agreement is concerned, such counsel
need express no opinion as to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights;
(xi) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company", within the meaning of the Investment Company Act of 1940,
as amended;
Such counsel shall also furnish you with a letter to the effect that:
as counsel to the Company, they reviewed the Registration Statement and the
Prospectus, participated in discussions with representatives of the
Underwriters and of the Company and its accountants and advised the Company
as to the requirements of the Securities Act and the applicable rules and
regulations thereunder; between the effectiveness of the Registration
Statement and the Closing Time, such counsel participated in further
discussions with representatives of the Underwriters and of the Company and
its accountants, in which the contents of certain portions of the Prospectus
and related matters were discussed, and reviewed certain documents filed by
the Company with the Commission, certificates of certain officers of the
Company and a letter from the Company's independent accountants; on the basis
of the information that such counsel gained in the course of the performance
of the services referred to above, considered in the light of such counsel's
understanding of the applicable law (including the requirements of Form S-3
and the character of the prospectus contemplated thereby) and the experience
such counsel have gained through their practice under the Securities Act,
they confirm to you that, in such counsel's opinion, the Registration
Statement and the Prospectus, as of the effective date of the Registration
Statement, appeared on their face to be appropriately responsive
11
<PAGE>
in all material respects to the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder; further,
nothing that came to such counsel's attention in the course of such review
has caused such counsel to believe that the Registration Statement or the
Prospectus, as of such effective date, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; also,
nothing that has come to such counsel's attention in the course of the
procedures described in the second clause of this paragraph has caused such
counsel to believe that the Prospectus, as of the Closing Time, contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; in addition, such
counsel do not know of any litigation or any governmental proceeding
instituted or threatened against the Company that would be required to be
disclosed in the Prospectus and is not so disclosed; also, such counsel do
not know of any documents that are required to be filed as exhibits to the
Registration Statement and are not so filed or of any documents that are
required to be summarized in the Prospectus and are not so summarized; such
counsel shall state that the limitations inherent in the independent
verification of factual matters and the character of determinations involved
in the registration process are such that such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except for those
made under the captions "Description of Capital Stock" and "Underwriters" in
the Prospectus insofar as they relate to provisions of documents therein
described; also, such counsel need express no opinion or belief as to the
financial statements or other financial or statistical data contained in the
Registration Statement or the Prospectus.
(d) The Underwriters shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated
the Closing Date, covering the matters referred to in Sections
5(c)(viii), 5(c)(ix), and the final paragraph of Section 5(c) above.
With respect to the final paragraph of Section 5(c) above, Davis
Polk & Wardwell may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto (other than the
documents incorporated by reference) and review and discussion of the
contents thereof (including the documents incorporated therein by
reference), but are without independent check or verification, except as
specified.
12
<PAGE>
(e) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from (i) Coopers & Lybrand LLP, independent
accountants for the Company, and (ii) Ernst & Young LLP, independent
accountants for CasTech Aluminum Group Inc. as of the date of their
opinion with respect to the financial statements of CasTech Aluminum
Group Inc. for the fiscal year ended March 31, 1996, each containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Registration Statement and the
Prospectus; provided that the letter delivered on the Closing Date shall
use a "cut-off date" not earlier than the date hereof.
(f) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and certain executive officers and
directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities,
delivered to you on or before the date hereof, shall be in full force
and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to you on the Option Closing Date of such
documents as you may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Additional Shares and other
matters related to the issuance of the Additional Shares as shall be reasonably
requested by the Underwriters.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, a conformed copy of the
Registration Statement (including exhibits thereto and documents
incorporated therein by reference) and for delivery to each other
Underwriter a conformed copy of the Registration Statement (without
exhibits thereto but including documents incorporated therein by
reference) and to furnish to you in New York City, without charge, on
the business day next succeeding the date of this Agreement and during
the period mentioned in Section 6(c) below, as many copies of the
Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request. The terms
"supplement" and "amendment" or "amend" as used in this Agreement shall
include all
13
<PAGE>
documents subsequently filed by the Company with the Commission pursuant
to the Exchange Act that are deemed to be incorporated by reference in
the Prospectus.
(b) Before amending or supplementing the Registration Statement
or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the
Commission within the applicable period specified in Rule 424(b) under
the Securities Act any prospectus required to be filed pursuant to such
Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with
sales by an Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which
Shares may have been sold by you on behalf of the Underwriters and to
any other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering
the twelve-month period ending September 30, 1998, that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(e) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including:(i) the fees, disbursements
and expenses of the Company's counsel and the Company's accountants in
connection with the registration and delivery of the Shares under the
Securities Act
14
<PAGE>
and all other fees or expenses in connection with the preparation and
filing of the Registration Statement, any preliminary prospectus, the
Prospectus and amendments and supplements to any of the foregoing,
including all printing costs associated therewith, and the mailing and
delivering of copies thereof to the Underwriters and dealers, in such
quantities as may be reasonably requested by the Underwriters, (ii)all
costs and expenses related to the transfer and delivery of the Shares to
the Underwriters, including any transfer or other taxes payable upon the
transfer to the Underwriters,(iii) the cost of printing or producing any
Blue Sky memorandum in connection with the offer and sale of the Shares
under state securities laws, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with the
Blue Sky memorandum,(iv) all filing fees and the reasonable fees and
disbursements of counsel to the Underwriters incurred in connection with
the review and qualification of the offering of the Shares by the
National Association of Securities Dealers, Inc., (v)all costs and
expenses incident to listing the Shares on the Nasdaq National
Market,(vi) the cost of printing certificates representing the
Shares,(vii) the costs and charges of any transfer agent, registrar or
depositary,(viii) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection with
the marketing of the offering of the Shares, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the Company,
travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and 50% of the cost of any aircraft
chartered in connection with the road show, and (ix) all other costs and
expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section. It
is understood, however, that except as provided in this Section, Section 7
entitled "Indemnity and Contribution", and the last paragraph of Section 9
below, the Underwriters will pay all of their costs and expenses, including
fees and disbursements of their counsel, stock transfer taxes payable on
resale of any of the Shares by them, travel and lodging expenses of the
representatives of the Underwriters and any advertising expenses
connected with any offers they may make.
7. Indemnity and Contribution.(a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses
15
<PAGE>
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished to the
Company in writing by any Underwriter expressly for use therein provided,
however, the foregoing indemnity with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any such losses,
claims, damages and liabilities purchased any of the Shares that are the
subject thereof if such person was not sent or given a copy of the Prospectus
(or the Prospectus as amended or supplemented), at or prior to the written
confirmation of the sale of such Shares to such person and the untrue
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus was corrected in the Prospectus (or the Prospectus as
amended or supplemented).
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only with reference to information furnished
to the Company in writing by such Underwriter expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 7(a) or 7(b), such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and
any others the indemnifying party may designate in such proceeding and shall
pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually
16
<PAGE>
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Morgan Stanley & Co. Incorporated, in the case of
parties indemnified pursuant to Section 7(a), and by the Company, in the case
of parties indemnified pursuant to Section 7(b). The indemnifying party shall
not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided
by clause 7(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause 7(d)(i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Shares (before deducting expenses) received
by the Company and the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth
17
<PAGE>
in the table on the cover of the Prospectus, bear to the aggregate Public
Offering Price of the Shares. The relative fault of the Company on the one
hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in
proportion to the respective number of Shares they have purchased hereunder,
and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account
of the equitable considerations referred to in Section 7(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement,(ii) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its officers
or directors or any person controlling the Company and (iii) acceptance of
and payment for any of the Shares.
8. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall
have been
18
<PAGE>
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange or the National Association
of Securities Dealers, Inc.,(ii) trading of any securities of the Company
shall have been suspended on any exchange or in any over-the-counter
market,(iii) a general moratorium on commercial banking activities in New
York shall have been declared by either Federal or New York State authorities
or (iv) there shall have occurred any outbreak or escalation of hostilities
or any change in financial markets or any calamity or crisis that, in your
judgment, is material and adverse and (b) in the case of any of the events
specified in clauses 8(a)(i) through 8(a)(iv), such event, singly or together
with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the
Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number
of Firm Shares set forth opposite their respective names in Schedule I bears
to the aggregate number of Firm Shares set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed
to purchase pursuant to this Agreement be increased pursuant to this Section
9 by an amount in excess of one-ninth of such number of Shares without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Firm Shares and the
aggregate number of Firm Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Firm Shares to be purchased,
and arrangements satisfactory to you and the Company for the purchase of such
Firm Shares are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either you or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may
be effected. If, on the Option Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Additional Shares and the aggregate number
of Additional Shares with
19
<PAGE>
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
Additional Shares or (ii) purchase not less than the number of Additional
Shares that such non-defaulting Underwriters would have been obligated to
purchase in the absence of such default. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, the
Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
20
<PAGE>
Very truly yours,
Commonwealth Industries, Inc.
By:___________________________________
Name:
Title:
Accepted as of the date hereof
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Acting severally on behalf of themselves
and the several Underwriters named in
Schedule I hereto.
By: Morgan Stanley & Co. Incorporated
By:___________________________________
Name:
Title:
<PAGE>
SCHEDULE I
Number of Firm Shares
Underwriter To Be Purchased
- -------------------------------------------- ---------------------
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
---------------------
Total: ......................................
---------------------
---------------------
<PAGE>
EXHIBIT A
[FORM OF LOCK-UP LETTER]
____________, 199_
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Dear Sirs and Mesdames:
The undersigned understands that Morgan Stanley & Co.
Incorporated ("Morgan Stanley") proposes to enter into an Underwriting
Agreement (the "Underwriting Agreement") with Commonwealth Industries,
Inc., a Delaware corporation (the "Company"), providing for the public
offering (the "Public Offering") by the several Underwriters, including
Morgan Stanley (the "Underwriters"), of 5,000,000 shares (the "Shares")
of the Common Stock, $0.01 par value of the Company (the "Common
Stock").
To induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public
Offering, the undersigned hereby agrees that, without the prior written
consent of Morgan Stanley on behalf of the Underwriters, it will not,
during the period commencing on the date hereof and ending 90 days after
the date of the final prospectus relating to the Public Offering (the
"Prospectus"), (1) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock, or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of
ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise. The foregoing sentence
shall not apply to the exercise of options or warrants or the conversion
of a security outstanding on the date hereof; provided that any Common
Stock issued in connection therewith is subject to the foregoing.
<PAGE>
The prior written consents of Morgan Stanley described in this
letter shall not be required unless and until the Underwriting Agreement
has been executed by Morgan Stanley and the Company.
Very truly yours,
----------------------------------
(Name)
----------------------------------
(Address)
2
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF SULLIVAN CROMWELL]
September 18, 1997
Commonwealth Industries, Inc.,
500 West Jefferson Street,
Louisville, Kentucky 40202-2833
Dear Sirs:
In connection with the registration under the Securities Act of 1933 (the
'Act') of 5,750,000 shares (the 'Securities') of Common Stock, par value $.01
share, of Commonwealth Industries, Inc., a Delaware corporation (the 'Company'),
and related stock purchase rights (the 'Rights') to be issued pursuant to the
Stockholder Protection Rights Agreement, dated as of March 6, 1996 (the 'Rights
Agreement'), between the Company and National City Bank, as Rights Agent (the
'Rights Agent'), we, as your counsel, have examined such corporate records,
certificates and other documents, and such questions of law, as we have
considered necessary or appropriate for the purposes of this opinion. Upon the
basis of such examination, we advise you that, in our opinion,
(1) When the registration statement relating to the Securities and the
Rights (the 'Registration Statement') has become effective under the Act,
the terms of the sale of the Securities have been duly established in
conformity with the Company's certificate of incorporation, and the
Securities have been duly issued and sold as contemplated by the
Registration Statement, the Securities will be validly issued, fully paid
and nonassessable.
(2) Assuming that the Rights Agreement has been duly authorized,
executed and delivered by the Rights Agent, then when the Registration
Statement has become effective under the Act and the Securities have been
validly issued and sold as contemplated by the Registration Statement, the
Rights attributable to the Securities will be validly issued.
In connection with our opinion set forth in paragraph (2) above, we note
that the question whether the Board of Directors of the Company might be
required to redeem the Rights at some future time will depend upon the facts and
circumstances existing at the time and, accordingly, is beyond the scope of such
opinion.
The foregoing opinion is limited to the Federal laws of the United States
and the General Corporation Law of the State of Delaware, and we are expressing
no opinion as to the effect of the laws of any other jurisdiction.
We have relied as to certain matters on information obtained from public
officials, officers of the Company and other sources believed by us to be
responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Validity of
Shares" in the Prospectus. We also consent to the incorporation by reference of
this opinion into a registration statement relating to the same class of
securities covered by the Registration Statement that is filed with respect to
the same offering pursuant to Rule 462(b) under the Act. In giving such
consents, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Act.
Very truly yours,
SULLIVAN & CROMWELL
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement of Commonwealth
Industries, Inc. on Form S-3 of our report dated February 11, 1997, on our
audits of the consolidated financial statements of Commonwealth Aluminum
Corporation. We also consent to the reference to our firm under the caption
"Experts."
COOPERS & LYBRAND L.L.P.
Louisville, Kentucky
September 17, 1997
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in Amendment
No. 2 to the Registration Statement (Form S-3 No. 333-32541) and related
Prospectus of Commonwealth Industries, Inc. for the registration of 5,750,000
shares of its common stock and to the incorporation by reference therein of our
report dated May 10, 1996, with respect to the consolidated financial statements
of CasTech Aluminum Group Inc. included in the Current Report (Form 8-K) of
Commonwealth Aluminum Corporation filed September 26, 1996 with the Securities
and Exchange Commission.
ERNST & YOUNG LLP
Akron, Ohio
September 17, 1997
