S-8
1
QUANEX CORPORATION FORM S-8
1
As filed with the Securities and Exchange Commission on January 11, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
QUANEX CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 38-1872178
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1900 WEST LOOP SOUTH, SUITE 1500 77027
HOUSTON, TEXAS (Zip Code)
(Address of Principal Executive Offices)
QUANEX CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
WAYNE M. ROSE
QUANEX CORPORATION
1900 WEST LOOP SOUTH, SUITE 1500
HOUSTON, TEXAS 77027
(Name and address of agent for service)
(713) 961-4600
(Telephone number, including area code, of agent for service)
Copies to:
HARVA R. DOCKERY, ESQ.
FULBRIGHT & JAWORSKI L.L.P.
1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77010-3095
CALCULATION OF REGISTRATION FEE
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Proposed
maximum Proposed maximum Amount of
Amount to be offering price aggregate registration
Title of securities to be registered registered per share (1) offering price fee
------------------------------------ ------------ --------------- ---------------- ------------
Common Stock, $.50 par value . . . . . 200,000 $21.69 $4,338,000 $1,496
Rights to purchase Series A Junior
Participating Preferred Stock . . . . . 200,000
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(1) Pursuant to Rule 457(h), the proposed maximum offering price is estimated,
solely for the purpose of determining the registration fee, on the basis
of the average high and low prices of the Common Stock on the New York
Stock Exchange Composite Tape on January 6, 1995.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
Quanex Corporation (the "Company" or "Registrant")
incorporates by reference in this Registration Statement the following
documents:
(a) The Registrant's annual report on Form 10-K
for the year ended October 31, 1993.
(b) The Registrant's quarterly reports on Form
10-Q for the quarters ended January 31, 1994, April 30, 1994,
and July 31, 1994.
(c) All other reports filed by the Registrant
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), since October
31, 1993.
(d) The description of the Registrant's common
stock, $.50 par value (the "Common Stock"), which is contained
in the Prospectus dated January 12, 1981, included in the
Registrant's Registration Statement (Registration No. 2-70313)
and filed with the Securities and Exchange Commission (the
"Commission") pursuant to Rule 424(b) of the Securities Act of
1933, as amended (the "Securities Act").
(e) The description of the rights to purchase
Series A Junior Participating Preferred Stock (the "Rights")
is set forth in the Amended and Restated Certificate of
Designation, Preferences and Rights, filed as Exhibit 1 to
Amendment No. 1 to the Registrant's Form 8-A dated April 28,
1989.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date
of the filing hereof and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of the filing of such documents.
ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
Not applicable.
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ITEM 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware provides that a corporation has the power to indemnify a director,
officer, employee or agent of the corporation and certain other persons serving
at the request of the corporation in related capacities against amounts paid
and expenses incurred in connection with an action or proceeding to which he
is, or is threatened to be made, a party by reason of such position, if such
person shall have acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, in any
criminal proceeding, if such person had no reasonable cause to believe his
conduct was unlawful; provided that, in the case of actions brought by or in
the right of the corporation, no indemnification shall be made with respect to
any matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the adjudicating court
determines that such indemnification is proper under the circumstances.
The Registrant's Restated Certificate of Incorporation, as
amended, eliminates the personal monetary liability of a director to the
Registrant and its stockholders for breach of his fiduciary duty of care as a
director to the extent currently allowed under the Delaware General Corporation
Law. Article XVII of the Registrant's Restated Certificate of Incorporation
provides that a director of the Registrant shall not be personally liable to
the Registrant 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 Registrant or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) based on the payment of an improper dividend or
an improper repurchase of the Registrant's stock under Section 174 of the
General Corporation Law of the State of Delaware, or (iv) for any transaction
from which the director derived an improper personal benefit.
The Bylaws of the Registrant provide that, under certain
circumstances, the Registrant is required to indemnify any person who was, is,
or is threatened to be made a party in any action, suit or proceeding because
such person is or was a director or officer of the Registrant. The
Registrant's Bylaws were amended in February 1987 to provide for
indemnification by the Registrant of its officers and directors to the fullest
extent authorized by the General Corporation Law of the State of Delaware.
This right to indemnification under the Registrant's Bylaws is a contract
right, and requires the Registrant to provide for the payment of expenses in
advance of the final disposition of any suit or proceeding brought against the
director or officer of the Registrant in his official capacity as such,
provided that such director or officer delivers to the Registrant an
undertaking to repay any amounts advanced if it is ultimately determined that
such director or officer is not entitled to indemnification. The Registrant
also maintains a directors' and officers' liability insurance policy.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been informed that in the opinion of the Commission, such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
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ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
4.1 Certificate of Incorporation of the Registrant, as
amended, filed as Exhibit 3.1 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended
October 31, 1987, and incorporated herein by
reference.
4.2 Amended and Restated Bylaws of the Registrant, as
amended through October 21, 1992, filed as Exhibit
3.2 to the Registrant's Annual Report on Form 10-K
for the fiscal year ended October 31, 1992, and
incorporated herein by reference.
4.3 Form of Registrant's Common Stock certificate, filed
as Exhibit 4.1 to the Registrant's Quarterly Report
on Form 10-Q for the quarter ended April 30, 1987,
and incorporated herein by reference.
4.4 Amended and Restated Rights Agreement between the
Registrant and Manufacturers Hanover Trust Company,
as Rights Agent, filed as Exhibit 1 to Amendment No.
1 to the Registrant's Form 8-A dated April 28, 1989,
and incorporated herein by reference.
4.5 Amended and Restated Certificate of Designation,
Preferences and Rights of the Registrant's Series A
Junior Participating Preferred Stock, filed as
Exhibit 1 to Amendment No. 1 to the Registrant's Form
8-A dated April 28, 1989, and incorporated herein by
reference.
4.6 Certificate of Designations of the Registrant's 6.88%
Cumulative Convertible Exchangeable Preferred Stock,
liquidation preference $250 per share, filed as
Exhibit 19.1 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended April 30, 1992, and
incorporated herein by reference.
4.7 Form of Indenture relating to the Registrant's 6.88%
Cumulative Subordinated Debentures due 2007 between
the Registrant and Chemical Bank, as Trustee, filed
as Exhibit 19.2 to the Registrant's Quarterly Report
on Form 10-Q for the quarter ended April 30, 1992,
and incorporated herein by reference.
4.8 Form of Certificate of 6.88% Cumulative Convertible
Exchangeable Preferred Stock, liquidation preference
$250 per share, filed as Exhibit 19.3 to the
Registrant's Quarterly Report on Form 10-Q for the
quarter ended April 30, 1992, and incorporated herein
by reference.
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4.9 Deposit Agreement, relating to Depositary Convertible
Exchangeable Preferred Shares between the Registrant
and Chemical Bank, filed as Exhibit 19.4 to the
Registrant's Quarterly Report on Form 10-Q for the
quarter ended April 30, 1992, and incorporated herein
by reference.
4.10 Form of Depositary Receipt for Depositary Convertible
Exchangeable Preferred Shares, filed as Exhibit 19.6
to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended April 30, 1992, and incorporated
herein by reference.
4.11 Note Agreement dated July 25, 1990, among the
Registrant and the Purchasers listed therein,
regarding the sale of $125,000,000 of the
Registrant's 10.77% Senior Notes due August 23, 2000,
filed as Exhibit 4.1 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended July 31,
1990, and incorporated herein by reference.
4.12 Revolving Credit and Letter of Credit Agreement dated
as of December 4, 1990, among the Registrant and the
Banks listed therein relating to a $40,000,000
revolving credit, filed as Exhibit 4.7 to the
Registrant's Annual Report on Form 10-K for the year
ended October 31, 1991, and incorporated herein by
reference.
4.13 Second Amendment to the Revolving Credit and Letter
of Credit Agreement dated as of April 15, 1992, filed
as Exhibit 4.13 to the Registrant's Registration
Statement on Form S-3 (Registration No. 33-47282),
and incorporated herein by reference.
4.14 Third and Fourth Amendments to the Revolving Credit
and Letter of Credit Agreement dated as of February
12, 1993, and April 1, 1993, respectively, filed as
Exhibit 19 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended April 30, 1993, and
incorporated herein by reference.
4.15 Fifth Amendment to the Revolving Credit and Letter of
Credit Agreement dated as of December 8, 1994.
4.16 Form of Quanex Corporation Employee Stock Purchase
Plan, as amended and restated on January 1, 1995.
23.1 Consent of Deloitte & Touche LLP.
24.1 Power of attorney (contained on page 7 hereof).
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ITEM 9. Undertakings.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the effective date of
this Registration Statement (or the most recent
post-effective amendment hereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in this Registration
Statement; and
(iii) To include any material information
with respect to the plan of distribution not
previously disclosed in this Registration Statement
or any material change to such information in this
Registration Statement;
Provided, however, that paragraphs (i) and (ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
B. The undersigned Registrant hereby undertakes that,
for the purposes of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference into this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the
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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 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 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 such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Robert C. Snyder and Wayne M.
Rose, and each of them, either one of whom may act without joinder of the
other, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, and each of them, or the substitute
or substitutes of any or all of them, may lawfully do or cause to be done by
virtue hereof.
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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-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on the 6th day of
January, 1995.
QUANEX CORPORATION
By /s/ Robert C. Snyder
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Robert C. Snyder
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Robert C. Snyder President, Chief Executive January 3, 1995
------------------------------- Officer and Director
Robert C. Snyder (Principal Executive Officer)
/s/ Wayne M. Rose Vice President and January 3, 1995
------------------------------- Chief Financial Officer
Wayne M. Rose (Principal Financial Officer)
/s/ Viren M. Parikh Controller (Principal January 3, 1995
------------------------------- Accounting Officer)
Viren M. Parikh
/s/ Carl E. Pfeiffer Chairman of the Board January 5, 1995
-------------------------------
Carl E. Pfeiffer
Director
-------------------------------
Gerald B. Haeckel
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Director
-------------------------------
Donald J. Morfee
/s/ John D. O'Connell Director January 5, 1995
-------------------------------
John D. O'Connell
/s/ Michael J. Sebastian Director January 6, 1995
-------------------------------
Michael J. Sebastian
/s/ Robert L. Walker Director January 5, 1995
-------------------------------
Robert L. Walker
Director
-------------------------------
Fred J. Broad
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EXHIBIT INDEX
Exhibit Number Description Page Number
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4.1 Certificate of Incorporation of the Registrant, as amended, filed
as Exhibit 3.1 to the Registrant's Annual Report on Form 10-K for
the fiscal year ended October 31, 1987, and incorporated herein by
reference.
4.2 Amended and Restated Bylaws of the Registrant, as amended through
October 21, 1992, filed as Exhibit 3.2 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended October 31, 1992, and
incorporated herein by reference.
4.3 Form of Registrant's Common Stock certificate, filed as Exhibit 4.1
to the Registrant's Quarterly Report on Form 10-Q for the quarter
ended April 30, 1987, and incorporated herein by reference.
4.4 Amended and Restated Rights Agreement between the Registrant and
Manufacturers Hanover Trust Company, as Rights Agent, filed as
Exhibit 1 to Amendment No. 1 to the Registrant's Form 8-A dated
April 28, 1989, and incorporated herein by reference.
4.5 Amended and Restated Certificate of Designation, Preferences and
Rights of the Registrant's Series A Junior Participating Preferred
Stock, filed as Exhibit 1 to Amendment No. 1 to the Registrant's
Form 8-A dated April 28, 1989, and incorporated herein by
reference.
4.6 Certificate of Designations of the Registrant's 6.88% Cumulative
Convertible Exchangeable Preferred Stock, liquidation preference
$250 per share, filed as Exhibit 19.1 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended April 30, 1992, and
incorporated herein by reference.
4.7 Form of Indenture relating to the Registrant's 6.88% Cumulative
Subordinated Debentures due 2007 between the Registrant and
Chemical Bank, as Trustee, filed as Exhibit 19.2 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
April 30, 1992, and incorporated herein by reference.
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4.8 Form of Certificate of 6.88% Cumulative Convertible Exchangeable
Preferred Stock, liquidation preference $250 per share, filed as
Exhibit 19.3 to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended April 30, 1992, and incorporated herein by
reference.
4.9 Deposit Agreement, relating to Depositary Convertible Exchangeable
Preferred Shares between the Registrant and Chemical Bank, filed as
Exhibit 19.4 to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended April 30, 1992, and incorporated herein by
reference.
4.10 Form of Depositary Receipt for Depositary Convertible Exchangeable
Preferred Shares, filed as Exhibit 19.6 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended April 30, 1992,
and incorporated herein by reference.
4.11 Note Agreement dated July 25, 1990, among the Registrant and the
Purchasers listed therein, regarding the sale of $125,000,000 of
the Registrant's 10.77% Senior Notes due August 23, 2000, filed as
Exhibit 4.1 to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended July 31, 1990, and incorporated herein by
reference.
4.12 Revolving Credit and Letter of Credit Agreement dated as of
December 4, 1990, among the Registrant and the Banks listed therein
relating to a $40,000,000 revolving credit, filed as Exhibit 4.7 to
the Registrant's Annual Report on Form 10-K for the year ended
October 31, 1991, and incorporated herein by reference.
4.13 Second Amendment to the Revolving Credit and Letter of Credit
Agreement dated as of April 15, 1992, filed as Exhibit 4.13 to the
Registrant's Registration Statement on Form S-3 (Registration
No. 33-47282), and incorporated herein by reference.
4.14 Third and Fourth Amendments to the Revolving Credit and Letter of
Credit Agreement dated as of February 12, 1993, and April 1, 1993,
respectively, filed as Exhibit 19 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended April 30, 1993, and
incorporated herein by reference.
4.15 Fifth Amendment to the Revolving Credit and Letter of
Credit Agreement dated as of December 8, 1994.
4.16 Form of Quanex Corporation Employee Stock Purchase
Plan, as amended and restated on January 1, 1995.
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23.1 Consent of Deloitte & Touche LLP.
24.1 Power of attorney (contained on page 7 hereof).
EX-4.15
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QUANEX CORP LETTER OF CREDIT AGREEMENT
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EXHIBIT 4.15
FIFTH AMENDMENT TO QUANEX CORPORATION
REVOLVING CREDIT AND
LETTER OF CREDIT AGREEMENT
This Fifth Amendment to Quanex Corporation Revolving Credit and Letter of
Credit Agreement ("Fifth Amendment") made as of the 8th day of December, 1994
("Amendment Effective Date"), among Comerica Bank (successor in interest by
reason of merger to Manufacturers Bank, N.A., formerly known as Manufacturers
National Bank of Detroit), First Interstate Bank of Texas, N.A., Harris Trust
and Savings Bank and NationsBank of Texas, N.A. (individually, "Bank" and
collectively, "Banks"), Comerica Bank, as agent for the Banks (in such capacity
"Agent") and Quanex Corporation, a Delaware corporation ("Company").
WITNESSETH:
WHEREAS, the Banks, The Chase Manhattan Bank, N.A., the Agent and the
Company have executed and delivered that certain Quanex Corporation Revolving
Credit and Letter of Credit Agreement dated as of December 4, 1990 as amended
by a First Amendment to Quanex Corporation Revolving Credit and Letter of
Credit Agreement dated March 26, 1991, a Second Amendment to Quanex Corporation
Revolving Credit and Letter of Credit Agreement dated April 15, 1992, a Third
Amendment to Quanex Corporation Revolving Credit and Letter of Credit Agreement
dated as of February 12, 1993, and a Fourth Amendment to Quanex Corporation
Revolving Credit and Letter of Credit Agreement dated as of April 1, 1993 (the
"Original Agreement");
WHEREAS, concurrently herewith The Chase Manhattan Bank, N.A. is executing
and delivering to Agent an Acknowledgment of Termination of Interest in Loan
Agreement, terminating its interest in the Original Agreement; and
WHEREAS, the Company and the Banks desire to amend the Original Agreement
as set forth below and to terminate the rights and obligations of The Chase
Manhattan Bank, N.A. under the Original Agreement;
NOW, THEREFORE, in consideration of the premises, the Banks, the Agent and
the Company hereby agree as follows:
1. Section 1.9 of the Original Agreement is amended in its entirety to
read as follows:
"'Banks' shall mean Comerica Bank, First Interstate Bank of Texas,
N.A., Harris Trust and Savings Bank and NationsBank of Texas, N.A."
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2. Section 1.45 of the Original Agreement is amended in its entirety to
read as follows:
"1.45 'Majority Banks' shall mean at any time the Banks holding 60%
of the aggregate principal amount of the Indebtedness then outstanding
under the Notes and the undrawn amounts of outstanding Letters of Credit,
or, if no Indebtedness or Letters of Credit are then outstanding, of the
Percentages."
3. Section 1.70 of the Original Agreement is amended in its entirety to
read as follows:
"'Revolving Credit Maturity Date' shall mean March 31, 1999, or such
later date as is agreed to by the Company and the Banks pursuant to the
provisions of Section 2.7."
4. Section 1.77 is added to the Original Agreement as follows:
"1.77 'Renewal Fee' shall mean the fee payable to Agent on behalf of
the Banks in connection with any extension of the Revolving Credit Maturity
Date pursuant to Section 2.7 of this Agreement."
5. The following paragraph is added to the end of Section 2.7 of the
Original Agreement:
"Within five (5) days after receipt of written notice from Agent that
the Revolving Credit Maturity Date has been extended pursuant to this
Section 2.7, Company shall pay to Agent, on behalf of Banks, a Renewal Fee
in the amount equal to the Revolving Credit Aggregate Commitment
multiplied by one-eighth of one percent (1/8%). Whenever any payment of
the Renewal Fee shall be due on a day which is not a Business Day, the
date for payment thereof shall be extended to the next Business Day. Upon
receipt of such payment, Agent shall make prompt payment to each Bank of
its share of the Renewal Fee based upon its respective Percentage. It is
expressly understood that Renewal Fees are not refundable under any
circumstances."
6. Exhibit "D" to the Original Agreement is deleted in its entirety and
attached Exhibit D is substituted therefor.
7. The Original Agreement is amended to provide that on or before
January 6, 1995, Company shall pay to Agent on behalf of the Banks, a
nonrefundable amendment fee in the amount of $96,000 in connection with the
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Fifth Amendment. Upon receipt of such fee, Agent shall make prompt payment to
each Bank of its share of such fee based upon its respective Percentage.
8. The Original Agreement is amended to provide that each disbursement
made by each Bank, and each payment made by Agent to any Bank, pursuant to the
Agreement based on each Bank's Percentage shall be rounded up to the nearest
dollar ($1.00) or cent ($.01), as applicable. Company shall reimburse Agent and
each Bank promptly upon demand for all costs incurred and payments made by
Agent and each Bank in making any such rounded disbursement or payment.
9. Company hereby represents and warrants that, after giving effect to the
amendments contained herein, (a) execution, delivery and performance of this
Fifth Amendment and any other documents and instruments required by this Fifth
Amendment or the Original Agreement are within Company's corporate powers, have
been duly authorized, are not in contravention of law or the terms of Company's
Certificate of Incorporation or Bylaws, and do not require the consent or
approval of any governmental body, agency, or authority; and this Amendment and
any other documents and instruments required under this Fifth Amendment or the
Original Agreement, will be valid and binding in accordance with their terms;
(b) the continuing representations and warranties of Company set forth in
Sections 8.1 through 8.16 of the Original Agreement are true and correct on and
as of the date hereof with the same force and effect as made on and as of the
date hereof; (c) the continuing representations and warranties of Company set
forth in section 8.17 of the Original Agreement are true and correct as of the
date hereof with respect to the most recent financial statements furnished to
the Banks by Company in accordance with Section 9.3 of the Original Agreement;
and (d) no Event of Default, or condition or event which, with the giving of
notice or the running of time, or both, would constitute an Event of Default
under the Original Agreement, has occurred and is continuing as of the date
hereof.
10. This Fifth Amendment shall be effective upon (a) execution of this
Fifth Amendment by Company, Agent and the Banks, (b) delivery by Company to
Agent of new Revolving Credit Notes for the Banks in the form of Exhibit "A"
attached hereto completed to reflect the commitments of each Bank as modified
hereby, and (c) receipt by Agent of an executed Acknowledgement of Termination
of Interest in Loan Agreement from The Chase Manhattan Bank, N.A. Company
agrees to deliver to Agent on or before December 30, 1994 an opinion of legal
counsel to the Company and the Guarantors in form and substance satisfactory to
the Agent and the Banks.
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deemed to mean or refer to the Original Agreement as amended by this Fifth
Amendment.
12. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Original Agreement.
13. This Fifth Amendment may be executed in counterparts, in accordance
with Section 13.8 of the Original Agreement.
IN WITNESS WHEREOF, the Banks, the Agent and the Company have caused this
Fifth Amendment to be executed by their respective, duly authorized officers,
all as of the date set forth above.
COMPANY:
QUANEX CORPORATION
By: /s/ WAYNE M. ROSE
---------------------------
Wayne M. Rose
Title: Vice President-Finance
AGENT:
COMERICA BANK (successor in interest
by reason of merger to Manufacturers
Bank, N.A., formerly known as
Manufacturers National Bank of
Detroit), as Agent
By: /s/ BRADLEY TERRYN
---------------------------
Title: Vice President
------------------------
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BANKS:
COMERICA BANK (successor in interest
by reason of merger to Manufacturers
Bank, N.A., formerly known as
Manufacturers National Bank of
Detroit)
By: /s/ BRADLEY TERRYN
---------------------------------
Title: Vice President
------------------------------
FIRST INTERSTATE BANK OF TEXAS,
N.A.
By: /s/ HEATHER WITTMAN
---------------------------------
Name: Heather Wittman
Title: Banking Officer
------------------------------
HARRIS TRUST AND SAVINGS BANK
By: /s/ JAMES H. COLLEY
---------------------------------
Name: James H. Colley
Title: Vice President
------------------------------
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NATIONSBANK OF TEXAS, N.A.
By: /s/ FOREST S. SINGHOFF
--------------------------------
Name: Forest S. Singhoff
Title: Senior Vice President
The undersigned accept and agree to the Fifth Amendment to the Quanex
Corporation Revolving Credit and Letter of Credit Agreement dated as of
December 4, 1990, as amended, and ratify and confirm their respective
obligations under the Guaranty Agreements executed and delivered to the Banks
by the undersigned prior to the date of execution of such Fifth Amendment and
agree that such Guaranty Agreements, as amended, continue to be in full force
and effect.
LASALLE STEEL COMPANY
By: /s/ WAYNE M. ROSE
------------------------------
Its: Vice President
------------------------------
NICHOLS-HOMESHIELD, INC.
By: /s/ WAYNE M. ROSE
------------------------------
Its: Vice President
------------------------------
7
EXHIBIT "A"
REVOLVING CREDIT NOTE
$___________ Detroit, Michigan
________________, 1994
On or before the Revolving Credit Maturity Date (initially March 31,
1999), FOR VALUE RECEIVED, Quanex Corporation, a Delaware corporation,
("Company") promises to pay to the order of _____________________________, a
_________________ ("Bank") at Detroit, Michigan, care of Agent, in lawful money
of the United States of America the Indebtedness to Bank or so much of the sum
of ________________ Million and no/100 Dollars ($ ____________) as may from
time to time have been advanced and then be outstanding hereunder pursuant to
the Quanex Corporation Revolving Credit and Letter of Credit Agreement
("Agreement") dated as of December 4, 1990, as amended, made by and between
Company, certain banks including the Bank, and Comerica Bank (successor in
interest by reason of merger to Manufacturers Bank, N.A., formerly known as
Manufacturers National Bank of Detroit) as agent for such banks, together with
interest thereon as hereinafter set forth. Capitalized terms used herein,
unless defined to the contrary, have the meanings given them in the Agreement.
Each of the Loans made hereunder shall bear interest at the
Eurodollar-based Rate, or the Prime-based Rate as elected by Company or as
otherwise determined under the Agreement. Provided, however, that: (a) in the
event and so long as there shall exist a default hereunder or an Event of
Default, Loans outstanding hereunder shall bear interest at the default rates of
interest described in Section 4.1 of the Agreement; and (b) any Advances made
hereunder pursuant to Sections 3.6 and 3.7 of the Agreement shall bear interest
until paid at a per annum rate equal to the Prime-based Rate plus three percent
(3%) whether or not any default hereunder or any Event of Default shall then
exist.
Interest on the unpaid balance of all Loans shall be calculated and
payable as set forth in the Agreement.
This Note is a note under which advances, repayments and readvances may
be made from time to time, but only in accordance with the terms and conditions
of the Agreement. This Note evidences borrowing under, is subject to, and may
be accelerated or matured under, the terms of the Agreement, to which reference
is hereby made.
8
Company agrees that in the event of a default hereunder or any default
or Event of Default under the Agreement, Bank shall be entitled to liquidate
and collect all property or assets (including deposits and other credits)
whether presently owned or hereafter acquired, of Company in possession or
control of (or owning by) the Bank for any purpose, and to apply the proceeds
of such liquidations and collections, and offset any amounts owing by Bank,
against Company's obligations hereunder and under the Agreement.
THIS NOTE SHALL BE INTERPRETED AND THE RIGHTS OF THE PARTIES HEREUNDER
SHALL BE DETERMINED UNDER THE LAWS OF, AND ENFORCEABLE IN, THE STATE OF
MICHIGAN.
This Note replaces the Revolving Credit Note dated ____________, 1993
in the principal amount of $ ___________ by Company payable to Bank.
Company hereby waives presentment for payment, demand, protest and
notice of dishonor and nonpayment of this Note and agrees that no obligation
hereunder shall be discharged by reason of any extension, indulgence, release,
or forbearance granted by any holder of this Note to any party now or hereafter
liable hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note. Any transferees of,
or endorser, guarantor or surety paying this Note in full shall succeed to all
rights of Bank, and Bank shall be under no further responsibility for the
exercise thereof or the loan evidenced hereby.
Nothing herein shall limit any right granted Bank by any other
instrument or by law.
QUANEX CORPORATION
BY: ___________________________
Its: __________________________
2
9
EXHIBIT "D"
PERCENTAGES
BANK PERCENTAGE
Comerica Bank 37.50% $18,000,000
First Interstate Bank of Texas, N.A. 20.833333% $10,000,000
Harris Trust and Savings Bank 20.833333% $10,000,000
NationsBank of Texas, N.A. 20.833333% $10,000,000
3
EX-4.16
3
QUANEX CORP. EMPLOYEE STOCK PURCHASE PLAN
1
EXHIBIT 4.16
As amended and restated
January 1, 1995
QUANEX CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
1. The Quanex Corporation Employee Stock Purchase Plan ("Plan") which is
to be administered by Chemical Bank or any other transfer agent Quanex
Corporation ("Quanex") may appoint ("Bank") is set out in this
document.
To participate in the Plan, an individual:
A. Must be a regular full time employee of Quanex or any of its
subsidiaries;
B. Must submit a Payroll Withholding Authorization ("Withholding
Authorization") to the local Human Resources Department on or
before the first day of the month in which the individual
wishes to participate, authorizing Quanex to make the payroll
deductions specified by the employee, subject to any minimum
deduction set by Quanex; and
C. Must submit to the Bank (through the local Human Resources
Department) an Investment Authorization Card ("Investment
Authorization"), authorizing the Bank to act as agent for the
employee for purposes set out in Section 3.
3. The Bank will establish an account under the Plan ("Account") as agent
for each individual who fulfills the conditions in Section 2
("Participant") and will credit the following sources of cash to the
Account for the purchase of full and fractional shares of Quanex
Common Stock ("Plan Shares") for each Participant's Account:
A. Employee payroll deductions received from Quanex;
B. An amount from Quanex equal to 15 percent of each
Participant's payroll deductions made on or after January 1,
1995 ("Quanex Contribution");
C. Cash dividends received from Quanex on all Plan Shares in a
Participant's Account at the time a dividend is paid; and
D. Cash resulting from the sale of any Rights accruing to Plan
Shares in the Participant's Account under Section 11.
The minimum contribution that an employee may make to his account is
$10.00 per pay period.
4. The Bank will apply the cash credited to the Participant's Account
under Section 3 to the purchase of full and fractional Plan Shares and
will credit them to the Participant's
2
Account. In making these purchases the Bank may commingle the cash
credited to all Participant's Accounts. The price at which the Bank
is deemed to have acquired Plan Shares for a Participant's Account
will be the average price, excluding brokerage and other costs of
purchase, of all Plan Shares purchased by the Bank for all
Participant's in the Plan during the calendar month.
5. Participants may elect to add to their Account any shares of Quanex
Common Stock credited to their account under any plan that is similar
to this Plan, whether offered to Quanex employees before or after the
creation of this Plan. All shares will be held in the name of the
Bank or its nominee as Plan Shares subject to the terms and conditions
of this Plan.
6. The Bank will make reasonable efforts to apply the cash described in
Section 3 that it receives as agent for the Participant to the
purchase of Plan Shares on or promptly after the first day of the
following month after receipt by the Bank, except as described in
Section 7. Dividends received on Plan Shares and other amounts of
cash credited to the Account will be aggregated with the employee
payroll deductions and amounts contributed by Quanex received during
the calendar month and applied to the purchase of Plan Shares.
7. The Bank will purchase Plan Shares in negotiated transactions or on
any securities exchange where Quanex Common Stock is traded from time
to time. The purchases will be on terms as to price, delivery and
other matters, and will be executed through those brokers or dealers,
as the Bank may determine. Under certain circumstances, observance of
the rules and regulations of the Securities and Exchange Commission
may require temporary suspension of purchases by the Bank or may
require that a purchase be spread over a longer period than indicated
in Section 6. In that event purchases will be made or resumed when
permitted by the rules and regulations. In that event the Bank will
not be accountable for its inability to make all purchases within the
applicable period. If any Securities and Exchange Commission
suspension of trading in Quanex Common Stock remains effective for 90
consecutive days, the Bank will remit to each Participant, promptly
after the end of the period, all cash in the Participant's Account
attributable to the Participant's payroll deductions, cash dividends
paid to all Quanex stockholders and any sale of Rights pursuant to
Section 11.
8. As soon as practicable after the cash credited to the Participant's
Account has been applied to the purchase of Plan Shares (but in no
event later than 20 calendar days after the purchase) the Bank will
mail a statement ("Statement") to the Participant summarizing the
transactions in the Participant's Account since the last Statement.
The Bank will hold the Plan Shares of all Participants in its name or
in the name of its nominee evidenced by as many or as few certificates
as the Bank determines. No certificate representing Plan Shares
purchased for a Participant's Account will be issued to the
Participant unless he or she makes a request in writing or until his
or her Account is terminated and he or she makes the election
described in Section 16. Certificates will not be issued for less
than 10 shares unless the Account is terminated.
-2-
3
9. Quanex will pay all service charges, brokerage, costs of mailing and
other charges incurred because of the purchase of Plan Shares.
10. Each Participant is responsible for all taxes (whether local, state or
federal) due because of the Quanex Contribution, because of the
payment of a dividend or because of the sale of Plan Shares credited
to him or her. The Bank will timely prepare and forward to the
Internal Revenue Service, the appropriate state and local authorities
and the Participants the information returns required by the Internal
Revenue Code and Regulations and all state statutes, presently Forms
1099-Div and 1099-B. All Quanex Contributions will constitute taxable
income to the Participant to whose Account it is credited.
11. Any stock dividends and any shares received as a result of a stock
split on any Plan Shares accumulated in a Participant's Account will,
when received by the Bank, be credited to the Participant's Account.
If Quanex makes available to the holders of Plan Shares (a) rights to
purchase additional shares of stock, convertible debentures or other
securities of Quanex or (b) securities of any other issuer ((a) and
(b) collectively "Rights"), the Bank will sell those Rights received
on Plan Shares credited to Participant's Accounts as soon as
practicable and apply the proceeds to the purchase of additional Plan
Shares for the Participant's Accounts unless a Participant directs the
Bank prior to the payment date for the Rights to transfer all whole
Rights accruing to the Plan Shares to the Participant; provided that
the Bank will not sell any such Rights until they have become
separated from Plan Shares, if applicable, and their sale is permitted
under the terms of the rights and under applicable law. The price at
which the Bank will be deemed to have sold any given set of Rights for
a Participant's Account will be the average price, excluding
commissions and other costs of the sale, of all of that given set of
Rights sold by it for all Participants.
12. If a tender offer or exchange offer is commenced for Quanex Common
Stock, the Bank, upon receipt of information with respect thereto as
the holder of record of the Plan Shares, will either (i) forward, or
arrange for the forwarding of, information provided by the offeror to
holders of record of Quanex Common Stock to each Participant or (ii)
provide to the offeror the name and mailing address of each
Participant as reflected on the records of the Bank with instructions
to mail such material to each Participant. The Bank will tender all
or part of a Participant's Plan Shares in response to written
instructions from the Participant in such form as the Bank may
reasonably require and only if such instructions are received by the
Bank at least five days (or such shorter period as may be required by
law) prior to the termination of the offer. Unless the Bank has
received instructions in accordance with the previous sentence, it
will not tender a Participant's Plan Shares. Except to the extent
disclosure is required to tender Plan Shares pursuant to proper
written instructions, the Bank will maintain the confidentiality of a
Participant's election to tender or not tender Plan Shares.
13. Participants may not add any shares of Quanex Common Stock held in
their name to their Account except as permitted by Section 5.
-3-
4
14. The Bank will vote the Participant's Plan Shares as instructed by the
Participant on a form to be furnished by and returned to the Bank at
least five days (or such shorter period as the law may require) before
the meeting at which they are to be voted. The Bank will not vote
Plan Shares for which no instructions are received.
15. A Participant may request that the Bank sell all or any part of his or
her Plan Shares acquired before January 1, 1995, at any time, and all
or any part of his or her Plan Shares acquired on or after January 1,
1995, at any time after they have been held in his or her Account for
at least 180 days. A Participant who wishes to sell any part of his
or her Plan Shares may do so by giving notice to the local Human
Resources Department, who will then forward the notice to Quanex's
corporate office. Quanex will inform the Bank of the Participant's
election to sell Plan Shares within five business days of the receipt
by Quanex's corporate office of a notice from the employee. Upon
receipt of the notice, the Bank, as the Participant's agent, will sell
the number of Plan Shares specified in the Participant's notice within
three business days of receipt by the Bank of instructions to sell the
Plan Shares, and will deliver to the Participant the proceeds of the
sale, less a handling charge, brokerage commissions, and other costs
of sale. Whole and fractional shares may be aggregated and sold with
those of other Participants, in which case the proceeds for each
Participant will be based on the average sales price of all shares
aggregated and sold. Any sale may, but need not, be made by purchase
for other Accounts in which case the price will be the mean of the
high and low selling price of Quanex Common Stock as reported on the
principal stock exchange on which the stock is traded on the date of
receipt by the Bank of the notice of the Participant's desire to sell
Plan Shares or, if the stock is not traded on the date of receipt, the
mean on the next prior date that it was so traded. Any fractional
shares that are not sold will be paid for in cash at a price equal to
the mean of the high and low selling prices of Quanex Common Stock as
reported on the principal stock exchange on which Quanex Common Stock
is traded on the date of receipt by the Bank of the notice of the
Participant's desire to sell Plan Shares or, if the stock is not
traded on the date of receipt, the mean on the next prior date that it
was traded. If a Participant elects to sell all of his or her Plan
Shares, that Participant will be deemed to have terminated
participation in the Plan, and the provisions of Section 16 will
apply.
16. Participation in the Plan may be terminated by Participants at any
time by giving notice to the local Human Resources Department, who
will then forward the notice to Quanex's corporate office. Quanex
will inform the Bank of any Participant's election to terminate
participation within five business days of the receipt by Quanex's
corporate office of the notice from the employee. Upon receipt of the
notice, unless a Participant makes a contrary election in written
response to the Bank's notice of his Account, the Bank will send to
him at no charge a certificate or certificates representing the full
Plan Shares accumulated in his Account and a check for the net
proceeds of any fractional share in his Account. If a Participant
elects to terminate, he may not rejoin the Plan for a period of six
months from the date of the termination. In any case of termination,
the Bank will, if the Participant elects, sell, as the Participant's
agent, all or part of his shares within three business days of receipt
by the Bank of instructions to sell his Plan Shares, and will deliver
to him the proceeds of the sale, less a handling charge, brokerage
-4-
5
commissions, and other costs of sale; provided that the Bank may not
sell any Plan Shares acquired on or after January 1, 1995, if they
have not yet been held in the Participant's Account for at least 180
days. Whole and fractional shares may be aggregated and sold with
those of other Participants, in which case the proceeds for each
Participant will be based on the average sales price of all shares
aggregated and sold. Any sale may, but need not, be made by purchase
for other Accounts in which case the price will be the mean of the
high and low selling price of Quanex Common Stock as reported on the
principal stock exchange on which the stock is traded on the date of
receipt by the Bank of the notice of termination or, if the stock is
not traded on the date of receipt, the mean on the next prior date
that it was so traded. On termination, fractional shares accumulated
in a Participant's Account which are not aggregated and sold will be
paid for in cash at a price equal to the mean of the high and low
selling prices of Quanex Common Stock as reported on the principal
stock exchange on which Quanex Common Stock is traded on the date of
receipt by the Bank of the notice of termination or, if the stock is
not traded on the date of receipt, the mean on the next prior date
that it was traded.
17. The Bank may, with the consent of Quanex, amend this Plan. Quanex may
terminate this Plan by giving the Bank 30 days written notice of
termination. The Bank may terminate this Plan by giving Quanex 90
days written notice of termination. In addition the Bank may, with
the consent of Quanex, or shall, if requested to do so by Quanex,
appoint a successor to serve as agent for the Participants under the
Plan. In any case the Bank and Quanex will cause a notice of the
action to be mailed to each Participant. No action will have a
retroactive effect that would prejudice the interests of the
Participants. The terms and conditions of this Plan as in effect on
the effective date of the appointment of the successor will be binding
upon the successor.
18. Any notice, instruction, request, election or direction which, by any
provision of the Plan, is required or permitted to be given or made by
a Participant to the Bank must be in writing and should be given to
the Participant's local Human Resources Department, who will then
forward the notice to Quanex's corporate office; Quanex will then
provide the Bank with the notice, instruction, request, election or
direction within five business days of its receipt by Quanex's
corporate office. Any notice, instruction, request, election or
direction intended for the Bank will be deemed to be given or made
when received by the Bank. If a Participant wishes to contact the
Bank directly, he may do so by prepaid postage mail addressed to
Quanex Corporation Employee Stock Purchase Plan, Institutional Trust
and Agency Division, c/o Chemical Bank, 450 West 33rd Street, New
York, New York 10001. Any notice or certificate which, by any
provision of the Plan, is required or permitted to be given by the
Bank to a Participant, must be in writing and will be deemed to have
been given or made when received by the Participant, or five business
days after it has been mailed to the Participant's address as it last
appears on the Bank's records.
19. The Bank will not be liable for any action which is in compliance with
the terms and conditions of this Plan taken or omitted in good faith,
including without limitation, any claim of liability:
-5-
6
A. Arising out of failure to terminate a Participant's Account
upon the Participant's death or otherwise prior to the receipt
of written notice of the event causing termination,
accompanied by documentation deemed satisfactory by the Bank;
B. With respect to the prices at which Plan Shares are purchased
or Plan Shares or Rights are sold for a Participant's Account
and the timing and terms on which the purchase or sale is
made; or
C. For the market value, or any fluctuation in the market value,
after purchase of the Plan Shares or sale of Plan Shares or
Rights for a Participant's Account.
20. Except as is expressly provided in this Plan, no Participant can sell,
pledge, hypothecate or otherwise assign or transfer his Account, any
interest in his Account or any cash or stock credited to his Account.
Any attempt to sell, pledge, hypothecate, assign or transfer his
Account, any interest in his Account or any cash or stock credited to
his Account will be void.
21. A Participant who receives a financial hardship distribution from a
qualified cash or deferred arrangement described in Section 401(k) of
the Internal Revenue Code of 1986, as amended, that is maintained by
Quanex or any of its affiliates may not contribute to the Plan for a
period of 12 months after receipt of the financial hardship
distribution. The Participant must submit a new Withholding
Authorization to the Human Resources Department in order to recommence
contributions to the Plan after he has received the financial hardship
distribution.
22. The Withholding Authorization, the Investment Authorization, and this
Plan and its operation will be governed by and construed in accordance
with the laws of the State of New York.
-6-
EX-23.1
4
CONSENT OF DELOITTE & TOUCHE
1
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
Quanex Corporation:
We consent to the incorporation by reference in this Registration Statement of
Quanex Corporation on Form S-8 of our report dated November 24, 1993,
appearing in the Annual Report on Form 10-K of Quanex Corporation for the
year ended October 31, 1993.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Houston, Texas
January 11, 1995