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EXHIBIT 10.1
RMI TITANIUM COMPANY
VOTING TRUST AGREEMENT
THIS RMI TITANIUM COMPANY VOTING TRUST AGREEMENT ("Agreement"),
made and entered into as of the 4th day of August, 1994, by and among USX
CORPORATION, a Delaware corporation ("USX"), RMI TITANIUM COMPANY, an Ohio
corporation ("RMI") and MELLON BANK, N.A., as Trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, RMI is authorized to issue 30 million shares of its
common stock ("Common Stock") and five million shares of its preferred stock
("Preferred Stock") and, except as otherwise required by law or the Articles of
Incorporation of RMI, the holders of the Common Stock and the holders of the
Preferred Stock vote together as a single class for the election of directors
and on all other matters to be submitted to the shareholders of RMI (the Common
Stock and the Preferred Stock are, collectively, the "Voting Stock");
WHEREAS, RMI amended its Articles of Incorporation, effective
March 31, 1994, to change each share of Common Stock outstanding immediately
prior to the effective date of such amendment into one-tenth (1/10) of a share
of Common Stock;
WHEREAS, RMI has issued and there is outstanding, as of the date
hereof, 15,250,342 shares of Common Stock and no shares of Preferred Stock;
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WHEREAS, as of the date hereof, USX owns beneficially and of
record 8,250,000 shares of Common Stock, constituting approximately
fifty-four percent (54%) of all issued and outstanding Common Stock;
WHEREAS, USX intends, by entering into this Trust Agreement, to
subject to the voting trust created hereby sufficient shares of Voting Stock
owned beneficially by it at any time during the term hereof, so that the sum of
the number of shares of Voting Stock beneficially owned at such time (a) by USX
and not then held by the Trustee in the voting trust hereby created ("USX
Non-Trust Stock") (the number of shares so held by the Trustee at any time
shall be deemed to include any shares which, as of such time, USX is then
obligated to transfer, assign and deliver to and deposit with the Trustee
pursuant to Section 2.2(a) hereof, even though such shares shall not then have
been so transferred, assigned and delivered, and the USX Non-Trust Stock at
such time shall be deemed not to include any such shares), and (b) by any
Affiliate (as hereafter defined) of USX ("Affiliate Stock"), does not exceed
forty-nine percent (49%) of the total shares of Voting Stock outstanding at
such time and is at least one share less than the number of shares of Voting
Stock owned beneficially at such time by holders other than USX and its
Affiliates (the "Public Stock").
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NOW, THEREFORE, in consideration of the mutual agreements, and
subject to all the conditions herein contained, and intending to be legally
bound, the parties hereto agree as follows:
1. APPOINTMENT OF TRUSTEE. Mellon Bank, N.A. is hereby
appointed as Trustee for the purposes and with the powers set forth herein, and
accepts such appointment and agrees to act as Trustee hereunder in accordance
with the terms hereof.
2. ASSIGNMENT OF COMMON STOCK TO TRUSTEE.
2.1 INITIAL COMMON STOCK. USX hereby transfers,
assigns and delivers to and deposits with the Trustee 1,319,175 shares of
Common Stock (the "Initial Common Stock") represented by Certificate No.
RMI-11254, which certificate has been duly endorsed by USX for transfer to the
Trustee, receipt of which Certificate the Trustee hereby acknowledges.
2.2 ADDITIONAL RMI VOTING STOCK.
(a) If at any time during the term of this
Agreement, (i) the sum of the number of shares of Voting Stock beneficially
owned at such time (x) by USX, including both the Trust Stock and the USX
Non-Trust Stock, and (y) by all of USX's Affiliates, increases above the sum of
the number of such shares so owned as of the date hereof by USX and all of
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USX's Affiliates, for whatever reason, including, but not limited to
any purchases made, the exercise of any options, rights or warrants, or the
conversion of any convertible securities, or (ii) the aggregate number of
shares of Voting Stock which are outstanding decreases below the aggregate
number of such shares outstanding as of the date hereof, then in each such
event USX agrees to promptly transfer, assign and deliver to and deposit with
the Trustee such number of additional shares of Voting Stock, if any, as is
necessary to reduce the sum of the number of shares of (x) USX Non-Trust Stock,
and (y) Affiliate Stock to not more than forty-nine percent (49%) of all shares
of Voting Stock then outstanding, and at least one share less than the total
number of shares of Public Stock.
(b) In addition, USX may, but shall not be
obligated to, transfer, assign and deliver to and deposit with the Trustee,
from time to time, such number of additional shares of Common Stock, or
Preferred Stock, or both, as USX may elect to subject to this Agreement (all
such shares of additional Common and Preferred Stock, whether transferred,
assigned and delivered to and deposited pursuant to Section 2.2(a) or (b), are
referred to as the "Additional Voting Stock", and the Initial Common Stock and
the Additional Voting Stock is collectively referred to as the "Trust Stock").
(The sum of the number of shares of both the Trust Stock and the
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USX Non-Trust Stock should, at any time, equal the total number of
shares of Voting Stock owned beneficially by USX at such time.)
2.3 If at any time during the term of this Agreement, (i) the sum
of the number of shares of Voting Stock beneficially owned at such time (x) by
USX, including both the Trust Stock and the USX Non-Trust Stock, and (y) by all
of USX's Affiliates, decreases below the sum of the number of such shares so
owned as of the date hereof by USX and all of USX's Affiliates, for whatever
reason, including, but not limited to any sales made, or (ii) the aggregate
number of shares of Voting Stock which are outstanding increases above the
aggregate number of such shares outstanding as of the date hereof, then in each
such event the Trustee shall, upon receipt of written directions from USX,
deliver to USX a certificate or certificates, duly endorsed for transfer to
USX, for such number of shares of Trust Stock, if any, as is necessary to
increase the sum of the number of shares of (x) USX Non-Trust Stock, and (y)
Affiliate Stock to not more than forty-nine percent (49%) of the total shares
of Voting Stock outstanding at such time, and at least one share less than the
total number of shares of Public Stock. USX shall specify in its written
directions the number of shares the Trustee shall so deliver to USX. In the
event there are, at any time the Trustee is obligated to so deliver a
certificate
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to USX for any Trust Stock, two or more classes or series of Voting Stock
included in the Trust Stock, USX may designate which class or series of Voting
Stock shares of which are to be so delivered to it by the Trustee.
2.4 USX agrees to execute and deliver to the Trustee,
from time to time, such additional assignments or other instruments of
transfer as may be necessary in the reasonable opinion of the Trustee,
RMI or RMI's transfer agent to confirm and make effective any transfer,
assignment, delivery and deposit of Trust Stock to the Trustee pursuant to
this Agreement. The Trustee agrees to accept each such transfer, assignment,
delivery and deposit, and to hold all Trust Stock in accordance with and
subject to this Agreement.
2.5 All certificates for Trust Stock transferred, assigned,
delivered to and deposited with the Trustee pursuant to this Agreement shall be
promptly surrendered by the Trustee to RMI and canceled and new certificates
therefor shall be issued to the Trustee or its nominee or agent, showing the
Trustee or its nominee or agent as owner of record thereof in its capacity as
Trustee under this Agreement, and the stock transfer books and records of RMI
shall reflect such ownership.
2.6 TRUST CERTIFICATES NOT TO BE ISSUED. The Trustee shall
not issue any trust certificates in connection with this Trust.
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3. CONCERNING THE TRUSTEE.
3.1 POWER OF TRUSTEE TO VOTE TRUST STOCK. During the
term of this Agreement, the Trustee agrees it shall take the following actions,
and shall vote the Trust Stock, in the manner, and only in the manner, herein
provided.
(a) At every meeting of the holders of Common
Stock, or Preferred Stock, or both, of which the Trustee, its nominee or agent
has notice, the Trustee shall cause all of the shares of the Common Stock, or
Preferred Stock, or both, as the case may be, included in the Trust Stock, to
be present for purposes of determining the presence of a quorum at such
meeting.
(b) Whenever any vote of the holders of Common Stock,
or Preferred Stock, or both, is conducted at such a meeting, the Trustee shall:
(i) not vote any of the Trust Stock,
with respect to any election of directors;
(ii) cause the Trust Stock to be voted at
such meeting "for," "against" or to abstain from voting with respect to each
matter on which such vote is so conducted, other than an election of directors,
in the same proportion as all shares of Common Stock, or Preferred Stock, or
both, as the case may be, other than the Trust Stock, are validly voted
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"for," "against" or abstain from voting, as the case may be, with
respect to such matter.
(c) Whenever any consent in writing of the
holders of Common Stock, or Preferred Stock, or both, is sought with respect to
any action, the Trustee shall consent thereto with respect to such number of
shares of the Trust Stock as equals the proportion of all shares of Common
Stock, or Preferred Stock, or both, as the case may be, other than the Trust
Stock, as validly consents to such action.
(d) RMI agrees it shall permit the Trustee to
submit, in connection with any meeting of the holders of Common Stock, or
Preferred Stock, or both, or any written consent to any action of such holders,
a proxy or consent, signed by or on behalf of the Trustee, and on which the
following appears:
"The shares of Common Stock, or Preferred Stock, or
both, represented by this proxy [or written consent, as the case
may be] shall be deemed to be present, for purposes of
determining a quorum, and shall be deemed to be voted "for,"
"against" and to abstain from voting with respect to each matter
to be voted on at such meeting other than the election of
directors [or to consent with respect to such action, as the case
may be], to the extent provided in the RMI Voting Trust
Agreement, dated as of August 4, 1994."
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RMI agrees it shall recognize any such proxy or written consent as effective
and treat all of the shares of Trust Stock as present at any such meeting for
purposes of determining a quorum and treat the Trust Stock as having been voted
with respect to each matter to be voted on at such meeting, and to have
consented to such action, in the manner and to the extent provided for in
Sections 3.1(a), (b) and (c).
(e) Except as set forth in Sections 3.1(a), (b)
and (c) above, the Trustee shall not possess or be entitled to exercise any
right or power with respect to the Trust Stock, and, in illustration and not in
limitation of the foregoing, shall have no right or power to cause such Trust
Stock to be represented at any meetings other than meetings of the holders of
Common Stock or Preferred Stock, or both, in their capacity as holders of
Common Stock, or Preferred Stock, or both; to vote such Trust Stock; to consent
in writing with respect to such Trust Stock; or otherwise, but shall instead,
with respect to all matters relating to the Trust Stock other than those
matters to which Sections 3.1(a), (b) and (c) apply, act solely as it may be
directed to act from time to time by USX in writing with respect to the Trust
Stock. In illustration, but not in limitation, of the foregoing, USX may from
time to time direct the Trustee to sell shares of Trust Stock, as provided in
Section 3.2 below; to tender shares of
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Trust Stock in connection with any tender, exchange or other offer and
to distribute the consideration received for such shares in any such tender,
exchange or other offer directly to USX free of this Trust (unless such
consideration is shares of stock of RMI having ordinary power to vote for the
election of directors, in which case such shares shall be retained by the
Trustee and deemed to be Trust Stock to the extent provided in Section 2.2(a)
above); to register a dissent from corporate action and take all steps
necessary or desirable to perfect any dissenters' rights with respect to shares
of Trust Stock; and to exercise, or sell, for USX's benefit and as USX shall
direct, any options, rights or warrants issued to the holders of the Common
Stock, or Preferred Stock, or both, provided that USX shall make available to
the Trustee any exercise or subscription price to be paid in connection with
the exercise thereof and, provided further, that any shares of Common Stock, or
Preferred Stock, or both received in connection with the exercise thereof shall
be deemed to be Trust Stock to the extent provided in Section 2.2(a) above.
(f) In causing the Trust Stock to be present at
any meeting of the holders of Common Stock, or Preferred Stock, or both, for
purposes of determining a quorum, and in causing the Trust Stock to be voted
with respect to any matter to be voted on at such a meeting, or in consenting
to the taking of any action to be taken by the holders of the Common
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Stock, or Preferred Stock, or both, the Trustee shall have no
discretion, and shall act solely in accordance with this Agreement. In all
other matters, the Trustee shall act in accordance with directions provided by
USX in accordance with Section 3.1(e).
3.2 SALE OF TRUST STOCK. The Trustee shall, promptly
upon written notice from USX that USX has sold, assigned or transferred some or
all of the Trust Stock, deliver to USX or to USX's order a certificate or
certificates for such shares, endorsed for transfer in such manner as USX shall
direct; provided, however, that the Trustee shall have no duty to so deliver
any certificate unless (a) such sale, assignment or transfer by USX is a BONA
FIDE sale, assignment or transfer to a person other than an Affiliate of USX,
(b) USX is not in default of any of its obligations under this Trust Agreement,
and (c) USX shall deliver to the Trustee either a certificate signed on behalf
of USX by a duly authorized officer or an opinion of counsel, in each case
satisfactory to the Trustee, certifying as to (a) and (b), above. For purposes
of this Agreement, an "Affiliate" of USX, as of any time, shall mean any person
that, as of that time, directly, or indirectly, through one or more
intermediaries, controls or is controlled by, or is under common control with,
USX, and the term "control" means the possession, direct or indirect, of the
power to direct or cause the direction of the
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management and policies of a person, whether through ownership of
voting securities, by contract or otherwise; provided, however, that for
purposes of calculating as of any time the number of shares of Voting Stock
owned by Affiliates of USX or the number of shares of Public Stock, shares of
such stock needed by RMI in its treasury shall not be included. For purposes
of calculating the number of shares of the Initial Common Stock, as provided in
Section 2.1 above, the shares of Common Stock owned by each of the following
individuals have been aggregated with those owned by USX: Neil A. Armstrong,
Robert M. Hernandez, Charles C. Gedeon and Louis A. Valli. Such treatment of
shares owned by such individuals is solely for the purposes of calculating the
number of shares of the Initial Common Stock and does not constitute an
admission by USX or RMI that any such individual is an "Affiliate" for purposes
of this Agreement or otherwise. Any consideration received or to be received
by USX in connection with any such sale, assignment or transfer shall not be
subject to this Trust Agreement and if received by the Trustee shall promptly
be distributed to USX in accordance with Section 3.1(e). In the event of any
sale by USX of any Trust Stock which satisfies the conditions set forth in this
Section 3.2, the Trust Stock so sold shall thereafter not be subject to this
Trust in any respect and shall cease to be Trust Stock.
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3.3 TRUSTEE TO RECEIVE AND DISTRIBUTE DIVIDENDS. The
Trustee shall receive all dividends paid upon the Trust Stock in any manner
other than in Common Stock or Preferred Stock, including, but not limited to,
cash, and promptly pay such dividends to USX. Any and all shares of the Common
Stock or Preferred Stock received by the Trustee as a dividend or distribution
on, or upon any split-up or subdivision of, any of the Trust Stock, shall be
held by the Trustee as Trust Stock to the extent provided in Section 2.2(a)
above.
3.4 ADVICE OF COUNSEL. The Trustee shall be
entitled, in connection with this Trust Agreement, to the advice of legal
counsel and may employ counsel who, in the discretion of the Trustee, may be
counsel for RMI, USX or the Trustee individually; and the Trustee may act in
relation to this Agreement upon the opinion or advice of any such legal
counsel, whether retained or selected by it, by RMI, USX or otherwise. The
Trustee shall not be responsible for any loss resulting from any action or
nonaction taken by it in good faith in accordance with any such opinion or
advice.
3.5 COSTS AND EXPENSES. The Trustee shall be
entitled to incur and pay such reasonable costs, expenses and other charges,
including, but not limited to, reasonable attorneys' fees and expenses, of
every kind and nature whatsoever as it may deem necessary or appropriate in
connection with this Trust Agreement, including, without
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limiting the generality of the foregoing, costs, expenses and other
charges incurred in connection with administering the voting trust created
hereby and in enforcing or defending the validity of this Agreement or any part
hereof. All of such costs, expenses and other charges shall be borne and paid
by USX.
3.6 LIABILITY OF TRUSTEE. The Trustee shall not be
liable for any action taken or not taken by it in connection herewith in the
absence of its own gross negligence or willful misconduct; provided, however,
that in no event shall the Trustee be liable for any action taken or not taken
by it with the reasonable belief that USX has directed the Trustee to so act or
not act. The Trustee shall not be responsible for, or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in any officer's certificate or opinion of counsel provided to the Trustee
by USX hereunder, or otherwise reasonably believed by the Trustee to have been
made by either RMI or USX in connection with this Agreement; (ii) the
performance or observance of any of the covenants or agreements of either RMI
or USX hereunder; or (iii) the satisfaction of any condition specified herein.
The Trustee shall not incur any liability by acting in reliance upon any
notice, consent, certificate, statement, or other writing (which may be a wire,
telex or
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similar writing) reasonably believed by it to be genuine or to be
signed by the proper party or parties.
3.7 INDEMNIFICATION. USX shall indemnify the Trustee
against any cost or expense (including counsel fees and disbursements),
reasonably incurred by it in connection herewith and any claim, demand, action,
loss or liability (collectively, "Expense") that the Trustee may suffer or
incur in connection with this Agreement or any action taken or omitted by the
Trustee hereunder, except to the extent such Expense results from the gross
negligence or willful misconduct of the Trustee.
3.8 SUCCESSOR TRUSTEE. The Trustee may resign at any
time by giving notice thereof to RMI and USX; provided, that no such
resignation shall be effective until a successor trustee shall have been
appointed and agreed to act as Trustee. Upon any such resignation, RMI shall
have the right to appoint a successor Trustee, subject to the approval of USX,
which shall not be unreasonably withheld. If no successor Trustee shall have
been so appointed by RMI and approved by USX, and shall have accepted such
appointment, within ninety (90) days after the retiring Trustee's giving of
notice of resignation, then the retiring Trustee may appoint a successor, also
subject to the reasonable approval of USX. The Trustee hereunder shall at all
times be a corporation organized and doing business under the laws of the
United
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States or of any State or Territory thereof or of the District of
Columbia, which (a) is authorized under such laws to exercise corporate trust
powers, (b) is subject to examination or supervision by Federal, State,
Territorial or District of Columbia authority, and (c) shall have at all times
a combined capital and surplus of not less than ten million dollars
($10,000,000). In case at any time the Trustee shall cease to be eligible in
accordance with this Section 3.8, the Trustee shall resign immediately in the
manner and with the effect specified in this Section 3.8.
3.9 COMPENSATION OF THE TRUSTEE. USX covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation, and, except as otherwise expressly
provided, USX will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Agreement (including the
reasonable compensation, expenses and disbursements of its counsel and all
persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its gross negligence or intentional misconduct.
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4.0 MISCELLANEOUS.
4.1 TERMINATION AND IRREVOCABILITY OF TRUST. This
Agreement and the voting trust hereby created shall terminate on August 4,
2004, and shall be, and are hereby expressly declared to be irrevocable, except
that this Agreement and the voting trust hereby created may be terminated at
any time (i) by USX, by written notice to the Trustee and RMI in the event (a)
the sum of the number of shares of Voting Stock beneficially owned at such time
(x) by USX, including both the Trust Stock and the USX Non-Trust Stock, and (y)
by all Affiliates of USX, is not more than forty-nine percent (49%) of all
shares of Voting Stock then outstanding, or (b) the total number of shares of
Voting Stock beneficially owned by USX, including both the Trust Stock and the
USX Non-Trust Stock, is eighty percent (80%) or more of all shares of Voting
Stock then outstanding, or (c) any person shall acquire beneficial ownership of
more than seventy-five percent (75%) of the Public Stock, and (ii) by the
Trustee in its sole and absolute discretion, by written notice to USX and RMI
in the event it determines the purpose for which this Agreement has been
entered, and such voting trust has been created, is no longer applicable and
that the continuation of the same serves no substantial purpose.
4.2 EFFECT OF TERMINATION. Upon the termination of
this Agreement and the voting trust created hereby, in any
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manner provided for herein, the Trustee shall deliver the Trust Stock
to USX, duly endorsed for transfer to USX or to USX's order. When the Trustee
shall have so distributed all the Trust Stock and paid or distributed to all
persons entitled thereto any money or other property then held by the Trustee
in its capacity as Trustee hereunder, whether or not a part of the trust, the
Trustee shall be discharged of all further obligations hereunder.
4.3 AMENDMENT OF AGREEMENT. This Agreement may be
amended at any time by USX for one or more of the following purposes:
(a) to evidence the succession of another
corporation to USX, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of USX
pursuant to this Agreement;
(b) to add to the covenants of USX such
further covenants, restrictions, conditions or provisions as USX may desire;
(c) to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provision contained herein; or to make such other
provisions in regard to matters or questions arising under this Agreement; and
(d) to evidence the appointment and acceptance
of appointment of a successor trustee and to add to
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or change any of the provisions of this Agreement as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one trustee; provided that no such amendment pursuant to this Section
4.3(a), (b), (c) or (d) shall be inconsistent with the purpose of this
Agreement.
4.4 EFFECT OF PARTIAL INVALIDITY. If any one or more
provisions of this Agreement should be or become contrary to law, then such
provisions only shall be null and void and shall be deemed separable from the
remaining provisions hereof, and its or their invalidity shall not in any way
affect the validity of this Agreement as a whole or of any other provision or
portion thereof; provided however, that the Agreement as thereby modified
continues to be consistent with the original purpose hereof. In the event the
Agreement as so modified is not consistent with such purpose, the Agreement
shall be deemed rescinded or terminated at such time and in such manner or
upon such grounds, as the Trustee, acting pursuant to Section 4.1 hereof, or
a court of competent jurisdiction, may deem equitable. The Trust agrees that
if any of the provisions of Section 3.1 or 3.2 are declared contrary to law
it shall be deemed to be inconsistent with the original purpose hereof and the
Trustee shall, acting pursuant to Section 4.1, immediately terminate this
Agreement, unless USX shall otherwise direct.
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4.5 AGREEMENT MAY BE EXECUTED IN COUNTERPARTS. This
Agreement may be signed in any number of counterparts with the same force and
effect as though all of the parties hereto had signed but one instrument.
4.6 PERSONS BOUND. This Agreement shall inure to the
benefit of and bind, as the case may require, the parties hereto and their
respective heirs, executors, administrators, successors and assigns.
4.7 ENTIRE AGREEMENT. This Agreement, in conjunction
with those additional references made herein, is intended to embody the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes any and all negotiations, prior
discussions, or prior agreements and understandings.
4.8 PARAGRAPH HEADINGS. The headings of the several
paragraphs of this Agreement are inserted solely for convenience of reference,
and are not a part of and are not intended to govern or aid in the construction
of any of the terms or provisions thereof.
4.9 APPLICABLE LAW AND VENUE. This Agreement is to
be governed by and construed in accordance with the laws of the State of Ohio.
Any suit brought hereon shall be brought in the state or federal courts sitting
in the County of Trumbull, Ohio, or the Northern District of Ohio, as the case
may be, and the parties hereby waive any claim or defense that
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such forum is not convenient or proper. Each party agrees that any
such court shall have in personam jurisdiction over it and consents to service
of process on it in any manner authorized by Ohio law.
4.10 ADDITIONAL COVENANTS OF RMI. RMI agrees to give
USX and the Trustee prompt written notice of any change in the number of shares
of each of the Common Stock and the Preferred Stock which are (a) issued and
outstanding, (b) owned by RMI, or (c) owned of record or, to the best of RMI's
knowledge, beneficially by any Affiliate of USX.
EXECUTED as of the date set forth above.
RMI TITANIUM COMPANY
s/ T. G. RUPERT
By___________________________
T. G. Rupert
Senior Vice President &
Chief Financial Officer
USX CORPORATION
s/ L. B. JONES
By___________________________
L. B. Jones
Vice President &
Comptroller
MELLON BANK, N.A.
s/ BRUCE J. KARHU
By___________________________
Assistant Vice President
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