5,085,000 Shares
DT INDUSTRIES, INC.
Common Stock, $.01 par value
UNDERWRITING AGREEMENT
November 25, 1996
CS FIRST BOSTON CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXXX WERTHEIM & CO. INCORPORATED
As Representatives of the Several Underwriters,
c/o CS First Boston Corporation
Eleven Madison Avenue,
New York, N.Y. 10010
Dear Sirs:
1. Introductory. DT Industries, Inc., a Delaware corporation ("Company"),
proposes to issue and sell 1,800,000 shares, and the stockholders listed in
Schedule A attached hereto ("Selling Stockholders") propose severally to sell an
aggregate of 2,268,000 outstanding shares, of the Company's Common Stock, $.01
par value (the "Securities") (such 4,068,000 shares of Securities being
hereinafter referred to as the "U.S. Firm Securities"), to the several
Underwriters named in Schedule B hereto ("Underwriters"). Such offering and sale
by the Company and the Selling Stockholders are hereinafter referred to as the
"U.S. Offering."
It is understood that the Company and the Selling Stockholders are
concurrently entering into a Subscription Agreement, dated the date hereof
("Subscription Agreement"), with CS First Boston Limited ("CSFBL"), Xxxxxx
Xxxxxxx & Co. International Limited and J. Xxxxx Xxxxxxxx & Co. Limited, and the
other managers named therein (the "Managers") relating to the concurrent
offering and sale of 1,017,000 shares of Securities ("International Firm
Securities") outside the United States and Canada ("International Offering"), of
which 450,000 Shares will be offered by the Company and 567,000 Shares will be
offered by the Selling Stockholders.
In addition, as set forth below (i) the Company proposes to issue and sell
to the Underwriters, at the option of CS First Boston Corporation ("CSFBC"), an
aggregate of not more than 250,000 additional shares of Securities
and the Selling Stockholders also propose to sell to the Underwriters, at
the option of CSFBC, an aggregate of not more than 360,200 additional
outstanding shares of Securities (such 610,200 additional shares of
Securities being hereinafter referred to as the "U.S. Optional Securities") and
(ii) the Company proposes to issue and sell to the Managers, at the option of
CSFBL, an aggregate of not more than 62,500 additional shares of Securities and
the Selling Stockholders also propose to sell to the Managers, at the option of
CSFBL, an aggregate of not more than 90,050 additional outstanding shares of
Securities (such 152,550 additional shares of Securities being hereinafter
referred to as the "International Optional Securities"). The U.S. Firm
Securities and the U.S. Optional Securities are hereinafter called the "U.S.
Securities"; the International Firm Securities and the International Optional
Securities are hereinafter called the "International Securities"; the U.S. Firm
Securities and the International Firm Securities are hereinafter called the
"Firm Securities"; the U.S. Optional Securities and the International Optional
Securities are hereinafter called the "Optional Securities." The U.S. Securities
and the International Securities are collectively referred to as the "Offered
Securities." To provide for the coordination of their activities, the
Underwriters and the Managers have entered into an Agreement Between
U.S. Underwriters and Managers which permits them, among other things, to sell
the Offered Securities to each other for purposes of resale.
The Company and the Selling Stockholders hereby agree with the several
Underwriters as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-14955) relating to the
Offered Securities, including a form of prospectus relating to the U.S.
Securities and a form of prospectus relating to the International
Securities being offered in the International Offering, has been filed with
the Securities and Exchange Commission ("Commission") and either (A) has
been declared effective under the Securities Act of 1933 ("Act") and is not
proposed to be amended or (B) is proposed to be amended by amendment or
post-effective amendment. If such registration statement (the "initial
registration statement") has been declared effective, either (A) an
additional registration statement (the "additional registration statement")
relating to the Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has
become effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant to the
initial registration statement and, if applicable, the additional
registration statement or (B) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration statement
has been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such
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registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent amendment (if
any) to each such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
("Rule 462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"Effective Time" with respect to the initial registration statement or, if
filed prior to the execution and delivery of this Agreement, the additional
registration statement means (A) if the Company has advised the
Representatives that it does not propose to amend such registration
statement, the date and time as of which such registration statement, or
the most recent post-effective amendment thereto (if any) filed prior to
the execution and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c), or
(B) if the Company has advised the Representatives that it proposes to file
an amendment or post-effective amendment to such registration statement,
the date and time as of which such registration statement, as amended by
such amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement has
not been filed prior to the execution and delivery of this Agreement but
the Company has advised the Representatives that it proposes to file one,
"Effective Time" with respect to such additional registration statement
means the date and time as of which such registration statement is filed
and becomes effective pursuant to Rule 462(b). "Effective Date" with
respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its Effective
Time, including all material incorporated by reference therein, including
all information contained in the additional registration statement (if any)
and deemed to be a part of the initial registration statement as of the
Effective Time of the additional registration statement pursuant to the
General Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("Rule
430A(b)") under the Act, is hereinafter referred to as the "Initial
Registration Statement". The additional registration statement, as amended
at its Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all information
(if any) deemed to be a part of the additional registration statement as of
its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as
the "Additional Registration Statement". The Initial Registration Statement
and the Additional Registration are hereinafter referred to collectively as
the "Registration Statements" and individually as a "Registration
Statement". The form of prospectus relating to the U.S. Securities and the
form of prospectus relating to the International Securities, each as first
filed with the Commission pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") under the Act or (if no such filing is required) as
included in a Registration Statement, including all material incorporated
by reference in each such prospectus, are hereinafter referred to as the
"U.S. Prospectus" and the "International Prospectus," respectively, and
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collectively as the "Prospectuses." No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all material respects to the requirements of the Act
and the rules and regulations of the Commission ("Rules and Regulations")
and did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed or will conform, in all material respects to the requirements of
the Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or will
not omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (C) on the
date of this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of each of the
Prospectuses pursuant to Rule 424(b) or (if no such filing is required) at
the Effective Date of the Additional Registration Statement in which the
Prospectuses are included, each Registration Statement and each of the
Prospectuses will conform, in all material respects to the requirements of
the Act and the Rules and Regulations, and none of such documents includes,
or will include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. If the Effective Time of the
Initial Registration Statement is subsequent to the execution and delivery
of this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and each of the Prospectuses
will conform in all material respects to the requirements of the Act and
the Rules and Regulations, none of such documents will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and no Additional Registration Statement has been or will
be filed. The two preceding sentences do not apply to statements in or
omissions from a Registration Statement or either of the Prospectuses based
upon (i) written information furnished to the Company by any Selling
Stockholder specifically for use therein, it being understood and agreed
that the only such information is that described as such in Section 7(b)
hereof, and (ii) written information furnished to the Company by any
Underwriter through the Representatives or by any Manager through CSFBL
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is
an existing corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in
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the Prospectuses; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified or in good
standing, as the case may be, will not, individually or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(iv) Each subsidiary of the Company that is a "significant
subsidiary" (as defined in Rule 1-02 of Regulation S-X of the Commission)
or that is listed on Exhibit I hereto (each of the foregoing being referred
to as a "Significant Subsidiary") has been duly incorporated and is an
existing corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectuses;
and each subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires
such qualification, except with respect to such subsidiaries and
jurisdictions where the failure to be so qualified or in good standing, as
the case may be, will not, individually or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; all of the issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued and is fully paid
and nonassessable; and the capital stock of each Significant Subsidiary
owned by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects, except insofar as such stock has been
pledged, pursuant to credit agreements filed with the Commission, to secure
obligations of the Company and its subsidiaries to their respective senior
lenders, as set forth on Exhibit II hereto.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this
Agreement and the Subscription Agreement on each Closing Date (as defined
below), such Offered Securities will have been validly issued, fully paid
and nonassessable and will conform to the description thereof contained in
the Prospectuses; and the stockholders of the Company have no preemptive
rights with respect to the Securities.
(vi) Except as disclosed in the Prospectuses, there are no
contracts, agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any
Underwriter or Manager for a brokerage commission, finder's fee or other
like payment as a result of any of the transactions contemplated by this
Agreement.
(vii) Except as disclosed in the Prospectuses, there are no contracts,
agreements or understandings between the Company and any person granting
such
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person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Act.
(viii) The Securities are listed on The Nasdaq Stock Market's National
Market.
(ix) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement or the
Subscription Agreement in connection with the issuance and sale of the
Offered Securities by the Company, except such as have been obtained and
made, or are required to be made, under the Act and such as may be required
under state or foreign securities laws.
(x) The execution, delivery and performance of this Agreement and
the Subscription Agreement, and the issuance and sale of the Offered
Securities by the Company will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any statute,
any rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any agreement or
instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the charter
or by-laws of the Company or any such subsidiary, except with respect to
such breaches, violations and defaults which, individually or in the
aggregate with other breaches, violations and defaults, will not affect the
transactions contemplated hereby and will not have a material adverse
effect on or the Company and its subsidiaries, taken as a whole; and the
Company has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement and the Subscription
Agreement, respectively.
(xi) This Agreement and the Subscription Agreement have been duly
authorized, executed and delivered by the Company.
(xii) Except as disclosed in the Prospectuses and except
for statutory liens for sums not yet due or which are being
contested in good faith in appropriate proceedings, the Company
and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in
each case free from liens, encumbrances and defects that would,
individually or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole; and except as disclosed in
the Prospectuses or as will not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, the Company and its
subsidiaries hold any leased real or personal property under valid
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and enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(xiii) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them, except where
the failure to possess such certificates or permits will not, individually
or in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the Company and its subsidiaries taken as
a whole.
(xiv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that may
be reasonably expected to have a material adverse effect on the Company and
its subsidiaries taken as a whole.
(xv) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them, the loss of which may reasonably be expected,
individually or in the aggregate, to have a material adverse effect on the
Company and its subsidiaries, taken as a whole; and have not received any
notice of infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined adversely
to the Company or any of its subsidiaries, would, individually or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(xvi) Except as disclosed in the Prospectuses, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim may
reasonably be expected, individually or in the aggregate, to have a
material adverse effect on the Company and its subsidiaries taken as a
whole; and the Company is not aware of any pending investigation which
might lead to such a claim.
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(xvii) Except as disclosed in the Prospectuses, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, may reasonably be
expected, individually or in the aggregate, to have a material adverse
effect on the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole,
or may reasonably be expected to materially and adversely affect the
ability of the Company to perform its obligations under this Agreement or
the Subscription Agreement, or which are otherwise material in the context
of the sale of the Offered Securities; and, to the Company's knowledge, no
such actions, suits or proceedings are threatened or contemplated.
(xviii) The financial statements included in each Registration
Statement and the Prospectuses present fairly, in all material respects,
the financial position of the Company and its consolidated subsidiaries as
of the dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the United
States applied on a consistent basis; the schedules included in each
Registration Statement present fairly, in all material respects, the
information required to be stated therein; and the assumptions used in
preparing the pro forma financial statements included in each Registration
Statement and the Prospectus provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding historical
financial statement amounts.
(xix) Except as disclosed in the Prospectuses, since the date of the
latest audited financial statements included in the Prospectuses there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated
by the Prospectuses, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(xx) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectuses, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(xxi) Neither the Company nor any of its subsidiaries does business
with the government of Cuba or with any person located in Cuba within the
meaning of Section 517.075, Florida Statutes, and the Company agrees to
comply with such
8
Section if prior to the completion of the distribution of the Offered
Securities it commences doing such business.
(b) Each Selling Stockholder severally represents and warrants to,
and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the Offered
Securities to be delivered by such Selling Stockholder on such Closing Date
and full right, power and authority to enter into this Agreement and the
Subscription Agreement and to sell, assign, transfer and deliver the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date hereunder; and, upon the delivery of and payment for the
Offered Securities on each Closing Date hereunder, such Selling Stockholder
will convey to the several Underwriters and Managers valid and unencumbered
title to the Offered Securities to be delivered by such Selling Stockholder
on such Closing Date.
(ii) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement did not include any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement did not include, or will
not include, any untrue statement of a material fact and did not
omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
and (C) on the date of this Agreement, the Initial Registration Statement
and, if the Effective Time of the Additional Registration Statement
is prior to the execution and delivery of this Agreement, the Additional
Registration Statement each does not include, and at the time of
filing of each of the Prospectuses pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional Registration
Statement in which the Prospectuses are included, each Registration
Statement and each of the Prospectuses will not include, any untrue
statement of a material fact or omits, or will omit, to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this Agreement: on
the Effective Date of the Initial Registration Statement, the Initial
Registration Statement and each of the Prospectuses will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. The two preceding sentences apply only to the extent that
any statements in or omissions from a Registration Statement or Prospectus
are based on written information furnished to the Company by such Selling
9
Stockholder specifically for use therein, it being understood and agreed
that the only such information is that described in Section 7(b) hereof.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and each Selling Stockholder
agree, severally and not jointly, to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company and
each Selling Stockholder, at a purchase price of U.S. $32.95 per share, that
number of U.S. Firm Securities (rounded up or down, as determined by CSFBC in
its discretion, in order to avoid fractions) obtained by multiplying 1,800,000
U.S. Firm Securities in the case of the Company and the number of U.S. Firm
Securities set forth opposite the name of such Selling Stockholder in Schedule A
hereto, in the case of a Selling Stockholder, in each case by a fraction the
numerator of which is the number of U.S. Firm Securities set forth opposite the
name of such Underwriter in Schedule B hereto and the denominator of which is
the total number of U.S. Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold by
the Selling Stockholders have been placed in custody, for delivery under this
Agreement and the Subscription Agreement, under Custody Agreements made with
Boatmen's Trust Company, as custodian ("Custodian"). Each Selling Stockholder
agrees that the shares represented by the certificates held in custody for the
Selling Stockholders under such Custody Agreements are subject to the interests
of the Underwriters hereunder and the Managers under the Subscription Agreement,
that the arrangements made by the Selling Stockholders for such custody are to
that extent irrevocable, and that the obligations of the Selling Stockholders
hereunder and thereunder shall not terminate by operation of law, whether by the
death of any individual Stockholder or the occurrence of any other event, or in
the case of a trust, by the death of any trustee or trustees or the termination
of such trust. If any individual Selling Stockholder or any such trustee or
trustees should die, of if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities under
this Agreement and the Subscription Agreement, certificates for such Offered
Securities shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement and the Subscription Agreement as if such death or
other event or termination had not occurred, regardless of whether or not the
custodian shall have received notice of such death or other event or
termination.
The Company and the Custodian will deliver the U.S. Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price by wire transfer of immediately available funds to the Company at
a bank reasonably acceptable to CSFBC in the case of 1,800,000 Firm Securities
and by wire transfer of immediately available funds to the Custodian at a bank
reasonably acceptable to CSFBC in the case of 2,268,000 Firm Securities, at the
office of Xxxxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx LLP ("Xxxxxxxxx Xxxxxxx"), at 10:00
A.M., New York time, on December 2, 1996, or at such other time not later than
seven full business days thereafter as CSFBC and the Company determine,
such time being herein referred to as the "First Closing Date".
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For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the First
Closing Date (if later than the otherwise applicable settlement date) shall be
the settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the U.S. Offering and the International
Offering. The certificates for the U.S. Firm Securities so to be delivered will
be in definitive form, in such denominations and registered in such names as
CSFBC requests and will be made available for checking and packaging at the
above office of CSFBC at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and the
Selling Stockholders from time to time not more than 30 days subsequent to the
date of the Prospectuses, the Underwriters may purchase all or less than all of
the U.S. Optional Securities at the purchase price per Security to be paid for
the U.S. Firm Securities. The Company and the Selling Stockholders agree,
severally and not jointly, to sell the respective number of U.S. Optional
Securities determined as follows: first, the Company shall sell the number of
U.S. Optional Securities specified in such notice, or such lesser number of
Securities as shall bring the total number of Optional Securities sold by the
Company to 312,500 and then, after the Company has sold all of such 312,500
Optional Securities, each Selling Stockholder shall sell the respective number
of U.S. Optional Securities obtained by multiplying (a)(i) the number of
U.S. Optional Securities specified in such notice, less (ii) the number of
U.S. Optional Securities sold by the Company pursuant to such notice by (b) a
fraction the numerator of which is the number of shares set forth opposite the
names of such Selling Stockholder in Schedule A hereto under the caption "Number
of U.S. Optional Securities to be Sold" and the denominator of which is the
total number of U.S. Optional Securities to be sold by the Selling Stockholders
(subject to adjustment by CSFBC to eliminate fractions). Such U.S. Optional
Securities shall be purchased from the Company and each Selling Stockholder for
the account of each Underwriter in the same proportion as the number of
U.S. Firm Securities set forth opposite such Underwriter's name bears to the
total number of U.S. Firm Securities (subject to adjustment by CSFBC to
eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the
U.S. Firm Securities. No Optional Securities shall be sold or delivered unless
the U.S. Firm Securities and the International Firm Securities previously have
been, or simultaneously are, sold and delivered. The right to purchase the
Optional Securities or any portion thereof may be exercised from time to time
and to the extent not previously exercised may be surrendered and terminated at
any time upon notice by CSFBC, on behalf of the Underwriters and the Managers,
to the Company and the Selling Stockholders. It is understood that CSFBC is
authorized to make payment for and accept delivery of such Optional Securities
on behalf of the Underwriters and Managers pursuant to the terms of CSFBC's
instructions to the Company.
Each time for the delivery of and payment for the U.S. Optional
Securities, being herein referred to as an "Optional Closing Date," which
may be the First Closing Date (the First Closing Date and each Optional Closing
Date, if any, being sometimes referred to as a "Closing Date"), shall be
determined by CSFBC but shall be not later than five full business days after
written notice of election to purchase Optional Securities is given. The
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Company and the Custodian will deliver the U.S. Optional Securities being
purchased on each Optional Closing Date to the Representatives for the accounts
of the several Underwriters, against payment of the purchase price therefor by
wire transfer of immediately available funds to the Company at a bank reasonably
acceptable to CSFBC in the case of Optional Securities sold by the Company and
by wire transfer of immediately available funds to the Custodian at a bank
reasonably acceptable to CSFBC in the case of Optional Securities sold by the
Selling Stockholders, at the above office of Xxxxxxxxx Xxxxxxx. The certificates
for the U.S. Optional Securities being purchased on each Optional Closing Date
will be in definitive form, in such denominations and registered in such names
as CSFBC requests upon reasonable notice prior to such Optional Closing Date and
will be made available for checking and packaging at the above office of CSFBC
at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several Under-
writers propose to offer the U.S. Securities for sale to the public as set forth
in the U.S. Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company agrees with the several Underwriters and the Selling Stockholders that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file each of the Prospectuses with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to by
CSFBC, which consent will not be unreasonably withheld, subparagraph (4))
of Rule 424(b) not later than the earlier of (A) the second business day
following the execution and delivery of this Agreement or (B) the fifteenth
business day after the Effective Date of the Initial Registration
Statement.
(b) The Company will advise CSFBC promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and an
additional registration statement is necessary to register a portion of the
Offered Securities under the Act but the Effective Time thereof has not
occurred as of such execution and delivery, the Company will file the
additional registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance with
Rule 462(b) on or prior to 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, on or prior to the time either Prospectus is
printed and distributed to any Underwriter or Manager, or will make such
filing at such later date as shall have been consented to by CSFBC.
(c) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration statement
as filed or either of the related prospectuses or the Initial
Registration Statement, the Additional Registration Statement (if any)
or either of the Prospectuses and will not effect such
12
amendment or supplementation without CSFBC's consent; and the Company will
also advise CSFBC promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of a
Registration Statement or either of the Prospectuses and of the institution
by the Commission of any stop order proceedings in respect of a
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(d) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter, Manager or dealer, any event occurs as a result
of which either or both of the Prospectuses as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend either or both of the Prospectuses to comply
with the Act, the Company will promptly notify CSFBC of such event and will
promptly prepare and file with the Commission, at its own expense, an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's prior consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 6.
(e) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
security holders an earning statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "Availability Date" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter.
(f) The Company will furnish to the Representatives copies of
each Registration Statement (four of which will be signed and will
include all exhibits), each related preliminary prospectus relating
to the U.S. Securities, and, so long as a prospectus relating to
the Offered Securities is required to be delivered under the Act
in connection with sales by any Underwriter or dealer, the U.S.
Prospectus and all amendments and supplements to such documents,
in each case in such quantities as CSFBC requests. The U.S. Prospectus
shall be so furnished on or prior to 3:00 P.M., New York time, on the
business day following the later of the execution and delivery of this
Agreement or the Effective Time of the Initial Registration Statement. All
other such documents shall be so furnished as soon as available.
13
The Company and the Selling Stockholders will pay the expenses of printing
and distributing to the Underwriters all such documents.
(g) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions in the United
States as CSFBC designates and will continue such qualifications in effect
so long as required for the distribution.
(h) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (I) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other information concerning
the Company as CSFBC may reasonably request.
(i) For a period of 90 days after the date of the initial public
offering of the Offered Securities (the "Lock-Up Period"), the Company will
not offer, sell, contract to sell, pledge or otherwise dispose of, directly
or indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
CSFBC, except grants of restricted stock or stock options to employees
pursuant to the terms of a plan in effect on the date hereof (provided that
any such restricted stock or stock options shall not by their terms vest or
be exercisable or transferable during the Lock-Up Period) or the issuance
of stock pursuant to the exercise of any employee stock options outstanding
on the date hereof.
(j) The Company will pay all expenses incident to the performance of
the obligations of the Company and the Selling Stockholders under this
Agreement and for any filing fees and other expenses (including fees and
disbursements of counsel) incurred in connection with qualification of the
Offered Securities for sale under the laws of such jurisdictions in the
United States as CSFBC designates and the printing of memoranda relating
thereto, for the filing fee incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review
by the National Association of Securities Dealers, Inc. of the Offered
Securities, for any travel expenses of the Company's officers and employees
and any other expenses of the Company in connection with attending or
hosting meetings with prospective purchasers of the Offered Securities, for
any transfer taxes on the sale by the Selling Stockholders of the Offered
Securities to the Underwriters and for expenses incurred in distributing
preliminary prospectuses and the Prospectuses (including any amendments and
supplements thereto) to the Underwriters.
14
(k) Each Selling Stockholder agrees to deliver to CSFBC, attention:
Transactions Advisory Group on or prior to the First Closing Date a
properly completed and executed United States Treasury Department Form W-9
(or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(l) Each Selling Stockholder, other than the Fox Family Foundation,
agrees, for the Lock-Up Period, not to offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any additional
shares of the Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, or publicly
disclose the intention to make any such offer, sale, pledge or disposition,
without the prior written consent of CSFBC.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the U.S. Firm Securities on the
First Closing Date and the U.S. Optional Securities to be purchased on each
Optional Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of Price Waterhouse LLP
confirming that they are independent public accountants within the meaning
of the Act and the applicable published Rules and Regulations thereunder
and stating to the effect that:
(i) in their opinion the financial statements and schedules
examined by them and included or incorporated by reference in the
Registration Statements comply as to form in all material respects
with the applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Registration Statements;
15
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted
accounting principles;
(B) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date not
more than five business days prior to the date of this Agreement,
there was any change in the capital stock or any increase in
short-term indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated net current assets or net assets, as compared with
amounts shown on the latest balance sheet included in the
Prospectuses; or
(C) for the period from the closing date of the latest
income statement included in the Prospectuses to the closing date
of the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding
period of the previous year, in consolidated net sales or net
operating income or in the total or per share amounts of
consolidated income before extraordinary items or net income;
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter;
(iv) on the basis of a reading of the unaudited pro
forma financial statements included in the Registration Statement,
inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that the
unaudited pro forma financial statements included in the Registration
Statement do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations, or that the pro forma adjustments
16
have not been properly applied to the historical amounts in the
compilation of those statements; and
(v) they have compared specified dollar amounts (or percent-
ages derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statements is subsequent to the execution and delivery of this
Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statements is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "Registration Statements" shall
mean the Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time, and
(iii) "Prospectuses" shall mean the prospectuses included in the Registration
Statements. All financial statements and schedules included in material
incorporated by reference into the Prospectuses shall be deemed included in the
Registration Statements for purposes of this subsection.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have been consented to
by CSFBC. If the Effective Time of the Additional Registration Statement
(if any) is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, the time either
Prospectus is printed and distributed to any Underwriter or Manager, or
shall have occurred at such later date as shall have been consented to by
CSFBC. If the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement, each of the Prospectuses
shall have been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration
Statement shall have been issued and no proceedings for that
17
purpose shall have been instituted or, to the knowledge of any Selling
Stockholder, the Company or the Representatives, shall be contemplated by
the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company or its
subsidiaries taken as a whole which, in the reasonable judgment of a
majority in interest of the Underwriters including the Representatives, is
material and adverse and makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for the
U.S. Securities; (ii) any downgrading in the rating of any debt securities
of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading and no
implication of a possible downgrading, of such rating); (iii) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (iv) any banking moratorium
declared by U.S. Federal or, New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the reasonable judgment of a
majority in interest of the Underwriters including the Representatives, the
effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the U.S. Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxxxxx Xxxxxxx, counsel for the Company and the Selling
Stockholders, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectuses; and, to the knowledge
of such counsel, the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except such jurisdictions where
the failure of the Company to be so qualified or in good standing, as
the case may be, will not, individually or in the aggregate, have a
material adverse effect on the Company, and its subsidiaries, taken as
a whole;
18
(ii) The Offered Securities delivered on such Closing Date and
all other outstanding shares of the Common Stock of the Company have
been duly authorized and, upon payment therefor by the Underwriters
and Managers as provided herein and in the Subscription Agreement,
will be validly issued, fully paid and nonassessable; the Offered
Securities conform in all material respects to the description thereof
contained in the Prospectuses; and the stockholders of the Company
have no preemptive rights with respect to the Securities created by or
under the Company's Certificate of Incorporation or Bylaws, Delaware
state law or any agreements, instruments or understandings of which
such counsel has knowledge;
(iii) Except as disclosed in the Prospectuses, there are no
contracts, agreements or understandings known to such counsel between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act;
(iv) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectuses, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(v) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement or the
Subscription Agreement in connection with the issuance or sale of the
Offered Securities, except such as have been obtained and made under
the Act and such as may be required under state or foreign securities
laws;
(vi) The execution, delivery and performance of this Agreement
and the Subscription Agreement and the issuance and sale of the
Offered Securities by the Company will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order known to
such counsel of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company or any
of their properties, or any material agreement or instrument known
to such counsel to which the Company or any such subsidiary
is a party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such subsidiary
is subject (except, in the case of subsidiaries of the Company,
with respect to such breaches, violations and defaults which,
19
individually or in the aggregate, will not affect the transactions
contemplated hereby and will not have a material adverse effect on the
Company and its subsidiaries, taken as a whole), or the charter or
by-laws of the Company or any such subsidiary; and the Company has
full power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement and the Subscription
Agreement;
(vii) The Initial Registration Statement was declared effective
under the Act as of the date and time specified in such opinion, the
Additional Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, each of the Prospectuses either were filed
with the Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or were
included in the Initial Registration Statement or the Additional
Registration Statement (as the case may be), and, to the best of the
knowledge of such counsel, no stop order suspending the effectiveness
of a Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and each Registration Statement and each
of the Prospectuses, and each amendment or supplement thereto, as of
their respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act and the Rules and
Regulations; such counsel have no reason to believe that any part of a
Registration Statement or any amendment thereto, as of its effective
date or as of such Closing 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; or that either of the Prospectuses or any amendment or
supplement thereto, as of its issue date or as of such Closing Date,
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; the descriptions in the Registration Statements and
Prospectuses of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel do not know of any
legal or governmental proceedings required to be described in a
Registration Statement or the Prospectuses which are not described as
required or of any contracts or documents of a character required to
be described in a Registration Statement or the Prospectuses or to be
filed as exhibits to a Registration Statement which are not described
and filed as required; it being understood that such counsel need
express no opinion as to the financial statements or other financial
data contained in the Registration Statements or the Prospectuses; and
20
(viii) This Agreement and the Subscription Agreement have been
duly authorized, executed and delivered by the Company.
(ix) Each Selling Stockholder has record ownership and, to such
counsel's knowledge, beneficial ownership of the Offered Securities to
be delivered by such Selling Stockholder on such Closing Date and has
the legal right, power and authority to sell, assign, transfer and
deliver the Offered Securities to be delivered by such Selling
Stockholder on such Closing Date hereunder; and, assuming that the
Underwriters and the managers are "bona fide purchasers" (as such term
is defined under Section 8-302 of the New York Uniform Commercial
Code), upon delivery of the certificates for the Offered Securities to
be sold by each Selling Stockholder against payment therefor, the
several Underwriters and the Managers will have acquired valid title
to the Offered Securities purchased by them from the Selling
Stockholders on such Closing Date under this Agreement and the
Subscription Agreement free and clear of any security interest or
"adverse claims" within the meaning of Section 8-302 of the New York
Uniform Commercial Code;
(x) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Custody
Agreement, this Agreement or the Subscription Agreement in connection
with the sale of the Offered Securities sold by the Selling
Stockholders, except such as have been obtained and made under the Act
and such as may be required under state or foreign securities laws;
(xi) The execution, delivery and performance of this Agreement,
the Subscription Agreement and the Custody Agreement and sale of the
Offered Securities by the Selling Stockholders will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
known to such counsel of any governmental agency or body or any court
having jurisdiction over any Selling Stockholder or any of their
properties or any agreement or instrument known to such counsel to
which any Selling Stockholder is a party or by which any Selling
Stockholder is bound or to which any of the properties of any
Selling Stockholder is subject, or charter or by-laws of any
Selling Stockholder which is a corporation, partnership agreement
of any Selling Stockholder which is a partnership, operating
agreement of any Selling Stockholder which is a limited liability
company or trust agreement of any Selling Stockholder which is a
trust, except such breaches or violations as will not, individually
or in the aggregate, have a material adverse effect on the
ability of such Selling Stockholder to perform its obligations
hereunder and will not, individually or in the aggregate, have
21
a material adverse effect on the Company and its subsidiaries, taken
as a whole;
(xii) The Power of Attorney and related Custody Agreement with
respect to each Selling Stockholder have been duly authorized,
executed and delivered by such Selling Stockholder and constitute
valid and legally binding obligations of each such Selling Stockholder
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
(xiii) This Agreement, the Subscription Agreement and the Custody
Agreement have been duly authorized, executed and delivered by each
Selling Stockholder.
(e) The Representatives shall have received from Xxxxxx Xxxxxx &
Zavis, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectuses and other related matters as the
Representatives may require, and the Selling Stockholders and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that: the representations and warranties of the Company in this Agreement
are true and correct; the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to such Closing Date; no stop order suspending the
effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission; the Additional Registration Statement (if any) satisfying
the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing fee in
accordance with Rule 111(a) or (b) under the Act, prior to the time either
Prospectus was printed and distributed to any Underwriter or Manager; and,
subsequent to the respective date of the most recent financial statements
in the Prospectuses, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole except as
set forth in or contemplated by the Prospectuses or as described in such
certificate.
22
(g) The Representatives shall have received a letter, dated such
Closing Date, of Price Waterhouse LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three business days prior
to such Closing Date for the purposes of this subsection.
(h) On such Closing Date, the Managers shall have purchased the
International Firm Securities or the International Optional Securities, as
the case may be, pursuant to the Subscription Agreement.
(i) On the Effective Date, the Representatives shall have received
agreements from each of the Company's directors and executive officers to
the effect that they will not, for the Lock-Up Period, offer, sell contract
to sell, pledge or otherwise dispose of, directly or indirectly, any shares
of the Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, or publicly
disclose the intention to make any such offer, sale, pledge or disposition,
without the prior written consent of CSFBC.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, either of the
Prospectuses, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating
or defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from any
of such documents in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the information
described as such in subsection (C) below and provided, further, that with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any Underwriter
23
from whom the person asserting such losses, claims, damages or liabilities
purchased the Offered Securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter results from the fact that there
was not sent or given to such person, at or prior to the written confirmation of
the sale of such Offered Securities to such person, a copy of the Prospectus, if
required by the Act, if the Company had previously furnished copies thereof to
such Underwriter.
(b) Each Selling Stockholder, severally and not jointly, will indemnify
and hold harmless each Underwriter and the Company against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or the
Company may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, either of the Prospectuses, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder specifically for use
therein, and will reimburse each Underwriter or the Company for any legal or
other expenses reasonably incurred by such Underwriter or the Company,
respectively, in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred it being
understood and agreed that the only information furnished by any Selling
Stockholder consists of information concerning such Selling Stockholder set
forth under the caption "Principal and Selling Stockholders" and in the first
paragraph under the caption "Risk Factors -- Surrender of Voting Control by
Controlling Stockholders" in the Prospectuses; provided, however, that the
Selling Stockholders will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by an Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below and provided, further,
that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus, the indemnity
agreement contained in this subsection (b) shall not inure to the benefit of any
Underwriter from whom the person asserting such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that any
such loss, claim, damage or liability of such Underwriter results from the fact
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus, if required by the Act, if the Company had previously furnished
copies thereof to such Underwriter.
24
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or such Selling Stockholder may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, either of the Prospectuses, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company and each Selling Stockholder in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by any Underwriter consists of the following
information in the U.S. Prospectus furnished on behalf of each Underwriter: the
last paragraph on the bottom of the cover page concerning the terms of the
offering by the Underwriters; the legends concerning over-allotments,
stabilizing and passive market making on the inside front cover page; the
concession and reallowance figures appearing in the fifth paragraph under the
caption "Underwriting"; and the information contained in the sixth, seventh and
eighth paragraphs under the caption "Underwriting."
(d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof other than reasonable costs of investigation. In no
event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to local counsel) for all indemnified parties
in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same set of
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or could
25
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 any claims that are the subject
matter of such action.
(e) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a), (b) or
(c) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the U.S. Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Stockholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
U.S. Securities (before deducting expenses) received by the Company and the
Selling Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault 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, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the U.S. Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders
under this Section shall be in addition to any liability which the
Company and the Selling Stockholders may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of
26
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed a Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act and to each person, if any,
who controls any Selling Stockholder within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase U.S. Securities hereunder on either the First or
any Optional Closing Date and the aggregate number of shares of U.S. Securities
that such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total number of shares of U.S. Securities that the
Underwriters are obligated to purchase on such Closing Date, CSFBC may make
arrangements satisfactory to the Company and the Selling Stockholders for the
purchase of such U.S. Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the U.S. Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
U.S. Securities with respect to which such default or defaults occur exceeds 10%
of the total number of shares of U.S. Securities that the Underwriters are
obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Selling Stockholders for the purchase of such U.S.
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 9 (provided that if such default occurs with respect to
U.S. Securities after the First Closing Date, this Agreement will not terminate
as to the U.S. Firm Securities or any U.S. Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and
payment for the U.S. Securities. If this Agreement is terminated pursuant to
Section 8 or if for any reason the purchase of the U.S. Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company, the Selling Stockholders, and the Underwriters
pursuant to Section 7 shall remain in effect, and if any U.S. Securities
have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
27
the purchase of the U.S. Securities by the Underwriters is not consummated for
any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (ii),
(iii) or (iv) of Section 6(c) or the failure solely of the condition set forth
in Section 6(h) due to the occurrence of any event specified in 6(c)(i) of the
Subscription Agreement, the Company and the Selling Stockholders will, jointly
and severally, reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the U.S. Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o CS First Boston Corporation, Eleven Madison Avenue, New
York, N.Y. 10010-3629, Attention: Investment Banking Department - Transactions
Advisory Group, or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Corporate Centre, Suite 2-300, 0000 X.
Xxxxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxx, or, if sent
to the Selling Stockholders or any of them, will be mailed, delivered or
telegraphed and confirmed to Xxxxxx X. Xxxxxxxx at 0000 Xxxxxxx Xxxxxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000 and to Xxxxxxx X. Xxxxxxx at 0000 X Xxxxxx X.X.,
Xxxxxxxxxx, XX 00000; provided, however, that any notice to an Underwriter
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with this financing, and any action under this
Agreement taken by the Representatives joint or by CSFBC will be binding upon
all the Underwriters. Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxx will act for the
Selling Stockholders in connection with such transactions, and any action under
or in respect of this Agreement taken by Xxxxxx X. Xxxxxxxx or Xxxxxxx X.
Xxxxxxx will be binding upon all the Selling Stockholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or
28
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
29
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholders, the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
DT INDUSTRIES, INC.
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name Xxxxx X. Xxxxx
Title VP-Finance
THE SELLING STOCKHOLDERS NAMED IN SCHEDULE A
ATTACHED HERETO, ACTING SEVERALLY
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Attorney-in-fact
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
CS FIRST BOSTON CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXXX WERTHEIM & CO. INCORPORATED
Acting on behalf of themselves and
as the Representatives of the several
Underwriters
By CS FIRST BOSTON CORPORATION
By /s/ Xxxxxx X. Xxxxx
---------------------------------
Name Xxxxxx X. Xxxxx
Title Associate
SCHEDULE A
NUMBER OF U.S. FIRM NUMBER OF U.S. OPTIONAL
SELLING STOCKHOLDER SECURITIES TO BE SOLD SECURITIES TO BE SOLD
------------------- --------------------- -----------------------
Peer Investors L.P. 1,552,490 253,091
Peer Investors II L.P. 270,992 44,178
Fox Family Foundation 268,000 40,200
Harbour Group II Management
Co. 139,438 22,731
Harbour Group Investments II,
L.P. 37,080 0
--------- -------
2,268,000 360,200
========= =======
A-1
SCHEDULE B
NUMBER OF
U.S. FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- --------------------
CS First Boston Corporation ............................ 876,000
Xxxxxx Xxxxxxx & Co. Incorporated ...................... 876,000
Xxxxxxxx Wertheim & Co. Incorporated ................... 876,000
Xxxxx, Xxxxxxxx & Xxxx, Inc. ........................... 60,000
Xxxxxxx and S. Bleichroeder, Inc. ...................... 60,000
Xxxxxx X. Xxxxx & Co. Incorporated ..................... 60,000
Xxxxxx X. Xxxx & Company ............................... 60,000
Alex. Xxxxx & Sons Incorporated ........................ 120,000
Dresdner Kleinwort Xxxxxx North America LLC ............ 120,000
X.X. Xxxxxxx & Sons, Inc. .............................. 120,000
EVEREN Securities, Inc. ................................ 120,000
Xxxxxxxxx & Xxxxx LLC .................................. 120,000
Huntleigh Securities Corporation ....................... 60,000
Invemed Associates, Inc. ............................... 120,000
Xxxxxx X. Xxxxx & Co., L.P. ............................ 60,000
Xxxxxxxxxxx & Co., Inc. ................................ 120,000
The Xxxxxxxx-Xxxxxxxx Company, Inc. .................... 60,000
Xxxxxxxx Inc. .......................................... 120,000
Xxxxxx, Xxxxxxxx & Company, Incorporated ............... 60,000
----------
Total 4,068,000
=========
A-2
The following page contains a list of Exhibits which have been
intentionally omitted by the Registrant pursuant to Item 601(b)(2) of Regulation
S-K.
A copy of any omitted Exhibit will be provided to the Securities and
Exchange Commission upon request.
Exhibit I - Significant Subsidiaries
Exhibit II - Pledges of Stock of Significant Subsidiaries
