EXHIBIT 99.1
SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of May 9, 2002, by and among DT Industries, Inc., a Delaware corporation
(the "Company"), and the purchasers listed on Schedule A attached hereto
(collectively, the "Purchasers" and individually, a "Purchaser").
WHEREAS, the Company and its lenders have agreed to amend the Company's
senior credit facility that currently expires on July 2, 2002 (the "Credit
Facility") to, among other things, extend the Credit Facility's maturity date to
July 2, 2004, reduce the Company's total commitment under the Credit Facility,
revise the applicable interest rate and modify various financial covenants in
the Credit Facility;
WHEREAS, in connection with the Company's refinancing of the Credit
Facility, the Company and the holders of the 7.16% Convertible Preferred
Securities (the "Preferred Securities") of DT Capital Trust (the "Trust") have
agreed to restructure the Preferred Securities (and the related junior
subordinated debentures of the Company held by the Trust) so that, among other
things, $35,000,000 of the outstanding Preferred Securities are converted into
or otherwise exchanged for 4,375,000 shares of the Company's common stock, par
value $0.01 per share (the "Common Stock"), the $15,085,254 in accrued
paid-in-kind distributions on the Preferred Securities as of March 31, 2002 are
converted into or otherwise exchanged for 1,885,658 shares of Common Stock, the
conversion price of the remaining $35,000,000 of outstanding Preferred
Securities (and the related junior subordinated debentures of the Company held
by the Trust) is lowered to $14.00 per share, distributions on the Preferred
Securities do not accrue after March 31, 2002 until July 2, 2004 and the
maturity date of the Preferred Securities is accelerated to May 31, 2008; and
WHEREAS, a condition to the consummation of the Company's refinancing
of the Credit Facility and restructuring of the Preferred Securities is that the
Company issue and sell to the Purchasers, and the Purchasers purchase from the
Company, an aggregate of 7,000,000 shares of Common Stock (the "Shares") upon
the terms and conditions set forth herein.
IN CONSIDERATION of the mutual covenants and agreements contained
herein, the parties hereby agree as follows:
1.
1. AUTHORIZATION OF SALE OF THE SHARES
Subject to the terms and conditions of this Agreement, the Company has
authorized the sale of the Shares.
2. AGREEMENT TO SELL AND PURCHASE THE SHARES
2.1 PURCHASE AND SALE
Subject to the terms and conditions of this Agreement, each Purchaser
severally agrees to purchase, and the Company agrees to sell and issue to each
Purchaser, at the Closing (as defined below) that number of Shares set forth
opposite such Purchaser's name on Schedule A attached hereto.
2.2 PURCHASE PRICE
The purchase price of each Share shall be $3.20 (the "Per Share
Price"). The Company shall not, during the period beginning on the date of this
Agreement and ending ninety (90) days after the Closing Date (as defined below),
sell or issue or enter into an agreement to sell or issue (i) shares of its
Common Stock at a price per share (the "Subsequent Price") that is less than the
Per Share Price, or (ii) options, warrants or any other securities that can be
converted into, or otherwise exchanged or exercised for, shares of Common Stock
at a Subsequent Price that is less than the Per Share Price (a "Subsequent
Sale") unless the Company shall, upon the later of the Closing Date or the tenth
(10th) business day following the Subsequent Sale, pay to each Purchaser a cash
amount equal to the number of Shares purchased by such Purchaser times the
difference between the Per Share Price and the Subsequent Purchase Price;
provided, however, that the foregoing shall not apply to options issued by the
Company to employees and non-employee directors so long as the exercise price of
such options is equal to or greater than the fair market value of the Common
Stock on the date of grant.
3. DELIVERY OF THE SHARES AT THE CLOSING
(a) The completion of the purchase and sale of the Shares (the
"Closing") shall occur at the offices of Xxxxxx Xxxxxx Xxxxx Xxxxxxxx, counsel
to the Company, at 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx at 9:00
a.m. local time on the date the conditions to the Closing set forth in Sections
3(c), (d) and (e) are satisfied or, in the case of Sections 3(d) and (e), waived
or such other time and date as may be agreed by the parties (the "Closing
Date").
(b) At or prior to the Closing, the Company shall authorize its
transfer agent (the "Transfer Agent") to issue to each Purchaser at the Closing
one or more stock certificates (in such denominations as such Purchaser shall
request, the "Certificates") registered in the name of such Purchaser or its
custodial designee representing the number of Shares being purchased by such
Purchaser (as set forth opposite such Purchaser's name on Schedule A), against
payment by such Purchaser of the purchase price for such Shares by wire transfer
of immediately available funds. Prior to the Purchasers' delivery of payment for
the Shares, the Company will deliver to the Purchasers via facsimile in
accordance with Section 10 a copy of the Certificates to be delivered upon
Closing.
2.
(c) The respective obligations of the Company and the Purchasers to
complete the issuance, sale and purchase of the Shares at the Closing shall be
subject to the satisfaction of the following conditions:
(i) the issuance and sale of the Shares shall have been
approved by the requisite vote of the Company's stockholders entitled to vote
thereon;
(ii) the concurrent consummation of the amendment of the
Credit Facility in accordance with the Twelfth Amendment to the Fourth Amended
and Restated Credit Facilities Agreement attached hereto as Exhibit A; and
(iii) the consummation of the restructuring of the Preferred
Securities in accordance with the Exchange Agreement attached hereto as Exhibit
B (the "Preferred Restructuring") immediately prior to the consummation of the
issuance, sale and purchase of the Shares hereunder.
(d) The Company's obligation to complete the issuance and sale of the
Shares to the Purchasers at the Closing shall be subject to the satisfaction of
the following conditions, any one or more of which may be waived by the Company:
(i) receipt by the Company of the full amount of the purchase
price for the Shares being purchased under this Agreement by wire transfer of
immediately available funds; and
(ii) the representations and warranties made by the Purchasers
in this Agreement shall be true and correct in all material respects as of the
date of this Agreement and as of the Closing Date as though made on and as of
such date (except for representations and warranties that speak as of a specific
date) and the undertakings of the Purchasers herein shall have been fulfilled in
all material respects on or before the Closing.
(e) The Purchasers' obligations to purchase the Shares from the Company
shall be subject to the satisfaction of the following conditions, any one or
more of which may be waived by a Purchaser with respect to such Purchaser's
obligation:
(i) the representations and warranties made by the Company in
this Agreement shall be true and correct in all material respects (except to the
extent any representation or warranty is already qualified by materiality, in
which case it shall be true and correct in all respects and except for the
representations and warranties in Sections 4.2, 4.3 and 4.12, which shall be
true and correct in all respects) as of the date of this Agreement and as of the
Closing Date as though made on and as of such date (except for representations
and warranties that speak as of a specific date) and the undertakings of the
Company herein shall have been fulfilled in all material respects on or before
the Closing;
(ii) the Company shall have delivered to the Purchasers a
certificate executed by the chairman of the board or president and the chief
financial or accounting officer of the Company, dated the Closing Date, in form
and substance reasonably satisfactory to the Purchasers, to the effect that the
representations and warranties of the Company set forth in Section 4 hereof are
true and correct in all material respects (except to the extent any
3.
representation or warranty is already qualified by materiality, in which case it
shall be true and correct in all respects and except for the representations and
warranties in Sections 4.2, 4.3 and 4.12, which shall be true and correct in all
respects) as of the date of this Agreement and as of the Closing Date as though
made on and as of such date (except for representations and warranties that
speak as of a specific date) and that the Company has complied in all material
respects with all the agreements and satisfied all the conditions in this
Agreement on its part to be performed or satisfied on or before the Closing
Date;
(iii) the Company shall have delivered to Purchasers (a) a
legal opinion of its General Counsel in substantially the form attached hereto
as Exhibit C and (b) a legal opinion of Xxxxxx Xxxxxx Xxxxx Xxxxxxxx with
respect to the matters set forth in paragraphs 1, 2, 4, 6 and 7(i) and (ii) of
Exhibit C; and
(iv) the Company shall have filed with the Nasdaq National
Market a Nasdaq Notification for the Listing of Additional Shares covering the
Shares.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
Except as set forth on the Schedule of Exceptions attached hereto as
Exhibit D, the Company hereby represents and warrants to the Purchasers as
follows:
4.1 ORGANIZATION AND QUALIFICATION
Each of the Company and its subsidiaries (i) has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the
state of the jurisdiction of its incorporation; (ii) has the corporate power and
authority to own, lease and operate its properties and to conduct its business
as currently conducted and, with respect to the Company, to enter into and
perform its obligations under this Agreement; (iii) is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not, singly or in the aggregate, have a material
adverse effect on the financial condition, business or results of operations of
the Company and its subsidiaries, taken as a whole.
4.2 CAPITALIZATION
(a) The authorized capital stock of the Company consists of 100,000,000
shares of Common Stock and 1,500,000 shares of preferred stock, par value $0.01
per share.
(b) As of the date hereof, the issued and outstanding capital stock of
the Company consists of 10,387,274 shares of Common Stock, each of which
includes the right to purchase Series A Preferred Stock, par value $0.01 per
share, of the Company (the "Series A Preferred") upon the terms and conditions
set forth in the Rights Agreement, dated as of August 18, 1997, by and between
the Company and ChaseMellon Shareholder Services, L.L.C., as amended (the
"Rights Agreement"). The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued, are fully paid and
nonassessable and have not been issued in violation of, or are not otherwise
subject to, any preemptive or other similar rights.
4.
(c) The Company has reserved an aggregate of 1,600,000 shares of Common
Stock for issuance upon the exercise of stock options granted or available for
future grant, and for the issuance of restricted shares and performance stock
awards, under the Company's 1994 Employee Stock Option Plan, as amended, 1994
Directors Non-Qualified Stock Option Plan and 1996 Long Term Incentive Plan, as
amended.
(d) The Company has (i) agreed to issue an aggregate of 6,260,658
shares of Common Stock in exchange for $35,000,000 of the currently outstanding
Preferred Securities (and the related junior subordinated debentures of the
Company held by the Trust) and the $15,085,254 of accrued paid-in-kind
distributions thereon as of March 31, 2002 upon consummation of the Preferred
Restructuring and (ii) reserved 2,500,000 shares of Common Stock for issuance
upon the conversion of the $35,000,000 of Preferred Securities (and the related
junior subordinated debentures of the Company held by the Trust) that will
remain outstanding after consummation of the Preferred Restructuring.
(e) The Company has reserved 350,000 shares of Series A Preferred upon
exercise of the preferred stock purchase rights pursuant to the Rights
Agreement.
With the exception of the foregoing, there are no outstanding
subscriptions, options, warrants, convertible or exchangeable securities or
other rights granted to or by the Company to purchase shares of Common Stock or
other securities of the Company and there are no commitments, plans or
arrangements to issue any shares of Common Stock or any security convertible
into or exchangeable for Common Stock. The Company has not granted to any
stockholder the right to require the Company to register the sale of any
securities owned by such stockholder in the Registration Statement (as defined
below).
4.3 ISSUANCE, SALE AND DELIVERY OF THE SHARES
(a) The Shares have been duly authorized for issuance and sale to the
Purchasers pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration set
forth in this Agreement, will be validly issued and fully paid and nonassessable
and free and clear of all pledges, liens and encumbrances. The Certificates
evidencing the Shares are in due and proper form under Delaware law.
(b) The issuance of the Shares is not subject to preemptive or other
similar rights.
(c) Subject to the accuracy of the Purchasers' representations and
warranties in Section 5 of this Agreement, the offer, sale and issuance of the
Shares in conformity with the terms of this Agreement constitute transactions
exempt from the registration requirements of Section 5 of the Securities Act of
1933, as amended (the "Securities Act"), and from the registration or
qualification requirements of the laws of any applicable state or United States
jurisdiction.
4.4 FINANCIAL STATEMENTS
The consolidated financial statements included (as exhibits or
otherwise) in the Company Documents (as defined below) present fairly the
consolidated financial position of the Company
5.
and its subsidiaries as of the dates indicated and the results of their
operations for the periods specified, subject, in the case of unaudited interim
financial statements, to normal year-end adjustments. Except as otherwise stated
in such Company Documents, such consolidated financial statements have been
prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis, and any supporting schedules
included with the consolidated financial statements present fairly the
information stated in the financial statements. Except as otherwise indicated in
such Company Documents, the financial data regarding the Company and its
subsidiaries set forth in the Company Documents were prepared on an accounting
basis consistent with such consolidated financial statements.
4.5 NO MATERIAL CHANGE
Since June 24, 2001, except as disclosed in the Company Documents,
(a) there has been no material adverse change or any development
involving a prospective material adverse change in or affecting the financial
condition, business or results of operations of the Company and its
subsidiaries, taken as a whole, whether or not arising in the ordinary course of
business;
(b) there have been no transactions entered into by the Company, other
than those in the ordinary course of business, which are material with respect
to the Company;
(c) there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock; and
(d) The Company has not incurred any material contingent obligations.
4.6 ENVIRONMENTAL
Except as would not, singly or in the aggregate, reasonably be expected
to have a material adverse effect on the financial condition, business or
results of operations of the Company and its subsidiaries, taken as a whole:
(a) each of the Company and its subsidiaries is in compliance with all
applicable Environmental Laws (as defined below);
(b) each of the Company and its subsidiaries has all permits,
authorizations and approvals required under any applicable Environmental Laws
and is in compliance with the requirements of such permits authorizations and
approvals;
(c) there are no pending or, to the best of the Company's knowledge,
threatened Environmental Claims (as defined below) against the Company or any of
its subsidiaries; and
(d) under applicable law, there are no circumstances with respect to
any property or operations of the Company or any of its subsidiaries that are
reasonably likely to form the basis of an Environmental Claim against the
Company or any of its subsidiaries.
6.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) Federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority. "Environmental
Claims" means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law.
4.7 NO DEFAULTS
Neither the Company nor any of its subsidiaries is in violation of its
certificate of incorporation or bylaws or in material default in the performance
or observance of any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, loan agreement, deed,
trust, note, lease, sublease, voting agreement, voting trust, or other material
instrument or material agreement to which the Company or any of its subsidiaries
is a party or by which such party may be bound, or to which any of the property
or assets of the Company or any of its subsidiaries is subject.
4.8 LABOR MATTERS
No union labor dispute with the employees of the Company or its
subsidiaries exists or, to the knowledge of the Company, is imminent which could
reasonably be expected to have a material adverse effect on the financial
condition, business or results of operations of the Company and its
subsidiaries, taken as a whole.
4.9 NO ACTIONS
There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company or any of
its subsidiaries which, singly or in the aggregate, would reasonably be expected
to result in any material adverse change in the financial condition, business or
results of operations of the Company and its subsidiaries, taken as a whole, or
which, singly or in the aggregate, might materially and adversely affect the
Company's ability to consummate the transactions contemplated by this Agreement,
nor, to the knowledge of the Company, is there any reasonable basis therefor.
Neither the Company nor any of its subsidiaries is in default with respect to
any judgment, order or decree of any court or governmental agency or
instrumentality applicable to it which, singly or in the aggregate, would have a
material adverse effect on the financial condition, business or results of
operations of the Company and its subsidiaries, taken as a whole.
4.10 INTELLECTUAL PROPERTY
(a) The Company or its subsidiaries owns or is licensed to use all
patents, patent applications, inventions, trademarks, trade names, applications
for registration of trademarks, service marks, service xxxx applications,
copyrights, know-how, manufacturing processes, formulae, trade secrets, licenses
and rights in any thereof and any other intangible property that
7.
are material to the business of the Company as now conducted and as proposed to
be conducted (in this Agreement called the "Proprietary Rights"), or is seeking,
or will seek, to obtain rights to use such Proprietary Rights that are material
to the business of the Company as proposed to be conducted.
(b) The Company does not have any knowledge of, and neither the Company
nor any of its subsidiaries has given or received any notice of, any pending
conflicts with or infringement of the rights of others with respect to any
Proprietary Rights, or with respect to any license of Proprietary Rights, which
are material to the business of the Company.
(c) No action, suit, arbitration, or legal, administrative or other
proceeding, or investigation is pending or, to the best of the Company's
knowledge, threatened which involves any Proprietary Rights owned by the Company
or any of its subsidiaries, nor, to the best of the Company's knowledge, is
there any reasonable basis therefor. To the best of the Company's knowledge, no
action, suit, arbitration, or legal, administrative or other proceeding, or
investigation is pending or threatened which involves any Proprietary Rights
licensed by the Company or any of its subsidiaries, nor, to the best of the
Company's knowledge, is there any reasonable basis therefor.
(d) Neither the Company nor any of its subsidiaries is subject to any
judgment, order, writ, injunction or decree of any court or any Federal, state,
local, foreign or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, or any arbitrator, and has not
entered into or is not a party to any contract, which restricts or impairs the
use of any Proprietary Rights in a manner which would have a material adverse
effect on the use of any of the Proprietary Rights.
(e) Neither the Company nor any of its subsidiaries has received
written notice of any pending conflict with or infringement upon any third-party
proprietary rights.
(f) No claims have been asserted by any person with respect to the
validity of the Company's or any of its subsidiaries' ownership rights with
respect to the Proprietary Rights owned by the Company or any of its
subsidiaries and, to the best of the Company's knowledge, there is no reasonable
basis therefor. To the best of the Company's knowledge, no claims have been
asserted by any person with respect to the validity of the Company's or any of
its subsidiaries' right to use the Proprietary Rights licensed by the Company or
any of its subsidiaries and, to the best of the Company's knowledge, there is no
reasonable basis therefor.
(g) The Company and its subsidiaries have complied, in all material
respects, with their obligations set forth in any license agreements to which
the Company or any of its subsidiaries is a party relating to the protection of
the Proprietary Rights which are material to the business of the Company.
(h) To the knowledge of the Company, no person is infringing on or
otherwise violating the Proprietary Rights.
8.
4.11 PERMITS
The Company and its subsidiaries possess and are operating in
compliance in all material respects with all material licenses, certificates,
consents, authorities, approvals and permits from all state, federal, foreign
and other regulatory agencies or bodies necessary to conduct the businesses now
operated by them, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or modification of
any such permit, or any circumstance which would lead it to believe that such
proceedings are reasonably likely, which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the financial condition, business or results of operations of
the Company and its subsidiaries, taken as a whole.
4.12 DUE EXECUTION, DELIVERY AND PERFORMANCE
(a) This Agreement has been duly executed and delivered by the Company
and constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by (i) applicable bankruptcy or other similar laws relating to,
or affecting generally the enforcement of, creditors' rights or remedies, (ii)
general principles of equity or (iii) applicable laws and consideration of
public policy relating to indemnification and contribution provisions.
(b) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated in this Agreement
by the Company and the fulfillment of the terms of this Agreement by the
Company, including the Company's sale, issuance and delivery of the Shares, (i)
have been duly authorized by all necessary corporate action on the part of the
Company, subject to the approval of the issuance and sale of the Shares by the
Company's stockholders as contemplated by Section 7.1(b); (ii) will not conflict
with or constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to, any contract, indenture, mortgage, loan agreement, deed,
trust, note, lease, sublease, voting agreement, voting trust or other instrument
or agreement to which the Company or any of its subsidiaries is a party or by
which such party may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject; (iii) will not trigger
anti-dilution rights or other rights to acquire additional equity securities of
the Company; (iv) will not result in any violation of the provisions of the
certificate of incorporation or bylaws of the Company or any applicable statute,
law, rule, regulation, ordinance, decision, directive or order, and (v) will
not, in and of itself, cause a Purchaser to become an Acquiring Person as such
term is defined in the Rights Agreement, except in the case of clauses (ii) and
(iv) as would not, individually or in the aggregate, have a material adverse
effect on the financial condition, business or results of operations of the
Company and its subsidiaries, taken as a whole, or the ability of the Company to
consummate the transaction contemplated hereunder.
4.13 PROPERTIES
Each of the Company and its subsidiaries has good and valid title to
all properties owned by them which are material to the business of the Company,
free and clear of all material security interests, mortgages, pledges, liens,
charges, encumbrances and claims of record. Such
9.
properties are, in the aggregate, in good repair (reasonable wear and tear
excepted), and suitable for their respective uses. Any real property held under
lease by the Company or any of its subsidiaries is held under valid, subsisting
and, to the best of the Company's knowledge, enforceable leases with such
exceptions as are not material and do not interfere with the conduct of the
business of the Company.
4.14 COMPLIANCE
Each of the Company and its subsidiaries has conducted and is
conducting its business in compliance with all applicable Federal, state, local
and foreign statutes, laws, rules, regulations, ordinances, codes, decisions,
decrees, directives and orders, except where the failure to do so would not,
singly or in the aggregate, have a material adverse effect on the financial
condition, business or results of operations of the Company and its
subsidiaries, taken as a whole.
4.15 CONTRIBUTIONS
To the Company's knowledge, neither the Company nor any employee or
agent of the Company in the course of acting on behalf of the Company has made
any payment of funds of the Company or received or retained any funds in
violation of any law, rule or regulation.
4.16 USE OF PROCEEDS; INVESTMENT COMPANY
The Company intends to use the proceeds from the sale of the Shares to
reduce the Company's debt, to pay transaction costs related to the amendment of
the Credit Facility, the restructuring of the Preferred Securities and the sale
of the Shares, to pay any taxes incurred as a result of restructuring the
Preferred Securities and for general corporate purposes. The Company is not now,
and after the sale of the Shares under this Agreement and the application of the
net proceeds from the sale of the Shares described in the proceeding sentence
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
4.17 PRIOR OFFERINGS
All offers and sales of capital stock of the Company during the past
five years were at all relevant times registered under, or exempt from the
registration requirements of, the Securities Act and were registered under, or
subject to an available exemption from the registration requirements of, the
applicable state securities or Blue Sky laws.
4.18 TAXES
The Company and its subsidiaries have filed all tax returns required to
be filed, which returns are true and correct in all material respects, and
neither the Company nor any of its subsidiaries is in default in the payment of
any taxes, including penalties and interest, assessments, fees and other
charges, shown thereon due or otherwise assessed, other than those being
contested in good faith and for which adequate reserves have been provided or
those currently payable without interest which were payable pursuant to said
returns or any assessments with respect thereto.
10.
4.19 NON-COMPETITION AGREEMENTS
To the knowledge of the Company, any full-time employee who has entered
into any non-competition, non-disclosure, confidentiality or other similar
agreement with any party other than the Company is neither in violation of nor
is expected to be in violation of that agreement as a result of the business
currently conducted or expected to be conducted by the Company or such person's
performance of his or her obligations to the Company. The Company has not
received written notice that any consultant or scientific advisor of the Company
is in violation of any non-competition, non-disclosure, confidentiality or
similar agreement.
4.20 TRANSFER TAXES
On the Closing Date, all stock transfer or other taxes (other than
income taxes) that are required to be paid in connection with the sale and
transfer of the Shares to be sold to the Purchasers under this Agreement will
be, or will have been, fully paid or provided for by the Company and all laws
imposing such taxes will be or will have been fully complied with.
4.21 INSURANCE
The Company maintains insurance of the type and in the amount that the
Company reasonably believes is adequate for its business, including, but not
limited to, insurance covering real and personal property owned or leased by the
Company against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against by similarly situated companies, all of which
insurance is in full force and effect.
4.22 GOVERNMENTAL/ REGULATORY CONSENTS
No registration, authorization, approval, qualification or consent with
or required by any court or governmental/ regulatory authority or agency is
necessary in connection with the execution and delivery of this Agreement or the
offering, issuance or sale of the Shares under this Agreement.
4.23 SECURITIES AND EXCHANGE COMMISSION FILINGS; S-3 ELIGIBILITY
Since November 1, 2000, the Company has timely filed with the
Securities and Exchange Commission (the "Commission") all documents required to
be filed by the Company under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). The Company is eligible to use Form S-3 to register the
resale of the Shares under the Securities Act in accordance with Section 7.2
below.
4.24 ADDITIONAL INFORMATION
The Company represents and warrants that the information contained in
the following documents (the "Company Documents"), which will be provided to
each Purchaser before the Closing, is or will be, as the case may be, true and
correct in all material respects as of the respective filing date of the
applicable Company Document:
11.
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
June 24, 2001;
(b) the Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended September 23, 2001 and December 24, 2001;
(c) the Company's Proxy Statement for its 2001 Annual Meeting of
Stockholders; and
(d) all other documents, if any, filed by the Company with the
Commission since June 24, 2001 pursuant to Section 13, 14 or 15 of the Exchange
Act.
As of their respective filing dates, the Company Documents (i) complied
or will comply, as the case may be, in all material respects with the
requirements of the Exchange Act and (ii) did not or will not, as the case may
be, contain any untrue statement of material fact or omit a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. In
addition, as of its filing date, the definitive proxy statement that the Company
will prepare and file with the Commission and distribute to its stockholders in
connection with obtaining stockholder approval of the issuance and sale of the
Shares at the Special Meeting (as defined below) (i) will comply in all material
respects with the requirements of the Exchange Act and (ii) will not contain any
untrue statement of material fact or omit a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
4.25 NO INTEGRATED OFFERING
Neither the Company, nor any of its affiliates, nor any person acting
on its or their behalf, has directly or indirectly made any offers or sales in
any security or solicited any offers to buy any security under circumstances
that would require registration under the Securities Act of the issuance of the
Shares to the Purchasers or cause the issuance of the Shares to the Purchasers
to be integrated with any other issuance of the Company's securities (past,
current or future) for purposes of any registration requirement under the
Securities Act. The Company will not make any offers or sales of any security
(other than the Shares) that would cause the offering of the Shares to be
integrated with any other offering of securities by the Company for purposes of
any registration requirement under the Securities Act.
4.26 LISTING OF SHARES
So long as any Purchaser owns any of the Shares, the Company shall use
its best efforts to maintain the listing of the Common Stock on a national
securities exchange or automated quotation system. The Company (a) has taken no
action designed to delist, or which is likely to have the effect of delisting,
the Common Stock from the Nasdaq National Market, (b) is in compliance with the
listing requirements of the Nasdaq National Market and (c) has no reason to
believe that the Common Stock will be delisted from the Nasdaq National Market.
12.
4.27 NO MANIPULATION OF STOCK
The Company has not taken and will not, in violation of applicable law,
take any action outside the ordinary course of business designed to or that
might reasonably be expected to cause or result in unlawful manipulation of the
price of the Common Stock to facilitate the sale or resale of the Shares.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS
Each Purchaser represents, warrants and covenants to the Company as
follows:
5.1 SECURITIES LAW REPRESENTATIONS AND WARRANTIES
(a) The Purchaser is knowledgeable, sophisticated and experienced in
making, and is qualified to make, decisions with respect to investments in
shares representing an investment decision like that involved in the purchase of
the Shares, including investments in securities issued by the Company, and has
requested, received, reviewed and considered all information it deems relevant
in making an informed decision to purchase the Shares.
(b) The Purchaser is acquiring the number of Shares set forth opposite
its name on Schedule A in the ordinary course of its business and for its own
account for investment (as defined for purposes of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvement Act of 1976 and the regulations thereunder) only, and has
no present intention of distributing any of the Shares nor any arrangement or
understanding with any other persons regarding the distribution of such Shares,
other than as contemplated in Section 7 of this Agreement or as would otherwise
not be in violation of the Securities Act or any applicable state securities
laws.
(c) The Purchaser has completed or caused to be completed and delivered
to the Company the Stock Certificate Questionnaire and the Registration
Statement Questionnaire, attached to this Agreement as Appendices I and II, for
use in preparation of the Certificates, any necessary filings required by
applicable state securities laws and the Registration Statement (as defined in
Section 7.4 below), and the answers to the Questionnaires are true and correct
in all material respects as of the date of this Agreement and will be true and
correct in all material respects as of the effective date of the Registration
Statement; provided that the Purchaser shall be entitled to update such
information by providing notice thereof to the Company before the effective date
of such Registration Statement.
(d) The Purchaser understands that no United States federal or state
agency or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Shares or the fairness or suitability of
the investment in the Shares nor have such authorities passed upon or endorsed
the merits of the offering of the Shares.
(e) The Purchaser is an "accredited investor" within the meaning of
Rule 501 of Regulation D promulgated under the Securities Act.
(f) The Purchaser understands that the offer and sale of the Shares to
the Purchaser have not been and are not being registered under the Securities
Act or any state securities laws, and the Shares may not be offered for sale,
sold, assigned, pledged, transferred or otherwise
13.
disposed of unless (i) subsequently registered thereunder, (ii) the Purchaser
shall have delivered to the Company an opinion of counsel, in a generally
acceptable form, to the effect that such Shares to be offered for sale, sold,
assigned, pledged, transferred or otherwise disposed of may be so offered for
sale, sold, assigned, pledged, transferred or otherwise disposed of pursuant to
an exemption from such registration or (iii) the Purchaser provides the Company
with written reasonable assurance that such Shares can be or are being offered
for sale, sold, assigned, pledged, transferred or otherwise disposed of (a)
pursuant to, and in compliance with, Rule 144 under the Securities Act or (b) to
an Affiliate of the Purchaser pursuant to an exemption from such registration
and such Affiliate agrees in writing to be bound by the terms hereof. For
purposes of this Agreement, the term "Affiliate" shall mean with respect to any
person or entity any such other person or entity that is controlled by that
person or entity, controls that person or entity or is under common control with
that person or entity, including, if an entity is an investment company, any
fund or account advised by such entity's investment advisor.
(g) The Purchaser understands that the Certificates representing the
Shares purchased by it hereunder, until the occurrence of an event described in
Section 5.1(f)(i), (ii) or (iii), shall bear a restrictive legend in
substantially the following form (and a stop-transfer order may be placed
against transfer of such Certificates):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED, ASSIGNED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS,
(B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTED FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE
STATE SECURITIES LAWS OR (C) WRITTEN REASONABLE ASSURANCE THAT
IT WILL BE DONE (I) PURSUANT TO, AND IN COMPLIANCE WITH, RULE
144 UNDER SAID ACT OR (II) TO AN AFFILIATE PURSUANT TO AN
EXEMPTION FROM SUCH REGISTRATION.
The Company agrees to cause such legend and stop transfer order to be removed
from the Certificates representing the applicable Shares of a Purchaser upon the
occurrence of an event described in Section 5.1(f)(i), (ii) or (iii).
The Purchaser also understands that pursuant to the Rights Agreement
the Certificates shall also contain a legend in substantially the following
form:
THIS CERTIFICATE ALSO EVIDENCES AND ENTITLES THE HOLDER HEREOF
TO CERTAIN RIGHTS AS SET FORTH IN THE RIGHTS AGREEMENT BETWEEN
DT
14.
INDUSTRIES, INC. (THE "COMPANY") AND CHASEMELLON SHAREHOLDER
SERVICES, L.L.C. (THE "RIGHTS AGENT") DATED AS OF AUGUST 18,
1997 (AS AMENDED FROM TIME TO TIME, THE "RIGHTS AGREEMENT"),
THE TERMS OF WHICH ARE HEREBY INCORPORATED HEREIN BY REFERENCE
AND A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE
RIGHTS AGENT. UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE
RIGHTS AGREEMENT, SUCH RIGHTS WILL BE EVIDENCED BY SEPARATE
CERTIFICATES AND WILL NO LONGER BE EVIDENCED BY THIS
CERTIFICATE. THE COMPANY WILL MAIL TO THE HOLDER OF THIS
CERTIFICATE A COPY OF THE RIGHTS AGREEMENT, AS IN EFFECT ON
THE DATE OF MAILING, WITHOUT CHARGE PROMPTLY AFTER RECEIPT OF
A WRITTEN REQUEST THEREFOR. UNDER CERTAIN CIRCUMSTANCES SET
FORTH IN THE RIGHTS AGREEMENT, RIGHTS ISSUED TO, OR HELD BY,
ANY PERSON WHO IS, WAS OR BECOMES AN ACQUIRING PERSON OR ANY
AFFILIATE OR ASSOCIATE THEREOF (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT), WHETHER CURRENTLY HELD BY OR ON BEHALF
OF SUCH PERSON OR BY ANY SUBSEQUENT HOLDER, MAY BECOME NULL
AND VOID.
5.2 RESALES OF SHARES
(a) The Purchaser acknowledges and agrees that Shares purchased by it
hereunder are not transferable on the books of the Company pursuant to a resale
under the Registration Statement unless the Certificate submitted to the
Transfer Agent evidencing such Shares is accompanied by a separate officer's
certificate:
(i) in the form of Appendix III to this Agreement;
(ii) executed by an officer of, or other authorized person
designated by, the Purchaser; and
(iii) to the effect that (A) the Shares have been sold in
accordance with the Registration Statement and (B) the requirement of delivering
a current prospectus has been satisfied.
(b) The Company shall notify the Purchasers if it determines, in good
faith following consultation with its Board of Directors or a committee thereof,
that an event has happened as a result of which the Registration Statement or
the Prospectus (as defined in Section 7.4.1 below) includes an untrue statement
of material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing. Upon receipt of such notice, the Purchasers will
suspend their use of the
15.
Prospectus until such time as an amendment or supplement to the Registration
Statement or the Prospectus has been filed by the Company and any such amendment
to the Registration Statement is declared effective by the Commission, or until
such time as the Company has filed an appropriate report with the Commission
pursuant to the Exchange Act, in each case to correct such misstatement or
omission. The Company shall use its best efforts to prepare and file with the
Commission any such amendment, supplement or report, as the case may be, as soon
as practicable after delivering such notice to the Purchasers.
(c) In addition to the foregoing provisions of Section 5.2(b), the
Company may, upon written notice to the Purchasers, suspend the use of the
Prospectus for up to forty-five (45) days in any 365-day period (less the number
of days in such 365-day period that the Purchasers must suspend their use of the
Prospectus pursuant to Section 5.2(b)) based on the reasonable determination of
the Company's Board of Directors or a committee thereof that there is a
significant business purpose for such determination, such as pending corporate
developments, public filings with the SEC or similar events. Notwithstanding
anything else to the contrary in Section 5.2(b), the Company shall in no event
be required to disclose the business purpose for which it has suspended the use
of the Prospectus pursuant to this Section 5.2(c) if the Company determines in
its good faith judgment that the business purpose should remain confidential.
(d) The Company shall notify each Purchaser (i) of any request by the
Commission for an amendment or any supplement to such Registration Statement or
any related Prospectus, or any other information request by any other
governmental agency directly relating to the offering of the Shares, and (ii) of
the issuance by the Commission of any stop order suspending the effectiveness of
such Registration Statement or of any order preventing or suspending the use of
any related Prospectus or the initiation or threat of any proceeding for that
purpose.
(e) The Purchaser further covenants to notify the Company promptly of
the sale of any of its Shares.
(f) The Purchaser acknowledges that the Registration Statement may also
register under the Securities Act the resale of the shares of Common Stock
issued and issuable upon conversion or exchange of the Preferred Securities and
the paid-in-kind distributions thereon after the consummation of the Preferred
Restructuring, provided that the holders of such shares of Common Stock agree to
the Plan of Distribution section proposed by the Purchasers for the Registration
Statement.
5.3 DUE EXECUTION, DELIVERY AND PERFORMANCE
(a) This Agreement has been duly executed and delivered by the
Purchaser and constitutes a valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy or other similar laws
relating to, or affecting generally the enforcement of, creditors' rights or
remedies, (ii) general principles of equity or (iii) applicable laws and
consideration of public policy relating to indemnification and contribution
provisions.
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated in this Agreement and the
fulfillment of the
16.
terms of this Agreement have been duly authorized by all necessary corporate,
agency or other action and will not conflict with or violate the provisions of
the organizational documents of the Purchaser, including, without limitation,
its charter, bylaws, partnership agreement or operating agreement, as
applicable, or any applicable statute, law, rule, regulation, ordinance,
decision, directive or order, except as would not, individually or in the
aggregate, have a material adverse effect on the ability of the Purchaser to
consummate the transaction contemplated hereunder.
5.4 VOTE AT SPECIAL MEETING
The Purchaser covenants to vote, and to use its best efforts to cause
each entity listed opposite its name on Schedule B to vote, at the Special
Meeting (as defined below), in person or by proxy, the shares of Common Stock
beneficially owned by it in favor of the Company's issuance and sale of the
Shares hereunder and the Company's issuance of shares of Common Stock in the
Preferred Restructuring. The Purchaser hereby recognizes and acknowledges that a
breach by it of the foregoing covenant will cause the Company to sustain
irreparable harm for which the Company has no adequate remedy at law, and,
therefore, the Purchaser agrees that in the event of any threatened or actual
breach of the foregoing covenant the Company shall be entitled to the remedy of
specific performance of such covenant and injunctive and other equitable relief
in addition to any other remedy to which it may be entitled at law or in equity.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement,
all covenants, agreements, representations and warranties made by the Company
and the Purchasers in this Agreement shall survive the execution of this
Agreement, the delivery to the Purchasers of the Shares being purchased and the
payment therefor, provided that the representations and warranties of the
Company in Section 4 shall survive until a date that is 18 months after the
Closing Date.
7. PROXY STATEMENT; FORM D FILING; REGISTRATION; COMPLIANCE WITH THE
SECURITIES ACT; COVENANTS
7.1 PROXY STATEMENT; STOCKHOLDERS MEETING
(a) As promptly as practicable after the execution of this Agreement,
and in any event not more than 10 days following the execution of this Agreement
by all parties hereto, the Company shall prepare, and file with the Commission,
a preliminary proxy statement with respect to obtaining stockholder approval of
the issuance and sale of the Shares.
(b) Promptly after the date hereof, the Company shall take such action
as is necessary to convene a meeting of its stockholders (the "Special
Meeting"), which Special Meeting shall be held as promptly as practicable for
the purpose of voting on the issuance and sale of the Shares. Upon conclusion of
the Special Meeting, the Company shall promptly notify the Purchasers as to
whether its stockholders have approved the issuance and sale of the Shares at
the Special Meeting.
17.
7.2 FORM D FILING; REGISTRATION OF SHARES
7.2.1 REGISTRATION STATEMENT; EXPENSES
The Company shall:
(a) file in a timely manner a Form D relating to the sale of the Shares
under this Agreement, pursuant to Regulation D under the Securities Act.
(b) as soon as practicable after the Closing Date, but in no event
later than the 15th day following the Closing Date, prepare and file with the
Commission a Registration Statement on Form S-3 (or, if the Company is
ineligible to use Form S-3, then on such other form as is available for such
registration) registering under the Securities Act the sale of the Shares by the
Purchasers from time to time on the Nasdaq National Market (or the facilities of
any national securities exchange on which the Common Stock is then traded) or in
privately negotiated transactions (the "Registration Statement");
(c) use its reasonable best efforts to cause the Commission to notify
the Company of the Commission's willingness to declare the Registration
Statement effective on or before 90 days after the Closing Date;
(d) notify Purchasers promptly upon the Registration Statement, and any
post-effective amendment thereto, being declared effective by the Commission;
(e) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the Prospectus (as defined in
Section 7.4.1 below) and take such other action, if any, as may be necessary to
keep the Registration Statement effective until the earlier of (i) the date on
which the Shares may be resold by the Purchasers without registration and
without regard to any volume limitations by reason of Rule 144(k) under the
Securities Act or any other rule of similar effect or (ii) all of the Shares
have been sold pursuant to the Registration Statement or Rule 144 under the
Securities Act or any other rule of similar effect;
(f) promptly furnish to the Purchasers with respect to the Shares
registered under the Registration Statement such reasonable number of copies of
the Prospectus, including any supplements to or amendments of the Prospectus, in
order to facilitate the public sale or other disposition of all or any of the
Shares by the Purchasers;
(g) during the period when copies of the Prospectus are required to be
delivered under the Securities Act or the Exchange Act, file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of the
Exchange Act within the time periods required by the Exchange Act and the rules
and regulations promulgated thereunder;
(h) file documents required of the Company for customary Blue Sky
clearance in all states requiring Blue Sky clearance; provided, however, that
the Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so qualified or
has not so consented; and
18.
(i) bear all expenses in connection with the procedures in paragraphs
(a) through (i) of this Section 7.2.1 and the registration of the Shares
pursuant to the Registration Statement, but excluding fees and expenses of
counsel for the Purchasers and any commissions or other amounts payable to
brokers and any transfer taxes relating to Shares sold by the Purchasers.
7.2.2 DELAY OF EFFECTIVENESS, OR SUSPENSION OF USE, OF REGISTRATION
STATEMENT
In the event that (i) the Registration Statement is not declared
effective on or before the 90th day following the Closing Date (the "Damages
Date") or (ii) the Purchasers' use of the Prospectus is suspended for more than
45 days in any 365-day period pursuant to Sections 5.2(b) and (c), the Company
shall pay to each Purchaser liquidated damages in an amount equal to 0.05% of
the total purchase price of the Shares purchased by such Purchaser pursuant to
this Agreement for each trading day after the Damages Date that the Registration
Statement is not declared effective or for each trading day in excess of 45 days
in any 365-day period that the Purchasers' use of the Prospectus is suspended
pursuant to Sections 5.2(b) and (c), as applicable.
7.3 TRANSFER OF SHARES AFTER REGISTRATION
Each Purchaser agrees that it will not effect any disposition of the
Shares or its right to purchase the Shares that would constitute a sale within
the meaning of the Securities Act, except as contemplated in the Registration
Statement referred to in Section 7.2 or as otherwise permitted by law, and that
it will promptly notify the Company of any changes in the information set forth
in the Registration Statement regarding the Purchaser or its plan of
distribution.
7.4 INDEMNIFICATION
For the purpose of this Section 7.4, the term "Registration Statement"
shall include any preliminary or final prospectus, exhibit, supplement or
amendment included in or relating to the Registration Statement referred to in
Section 7.2.
7.4.1 INDEMNIFICATION BY THE COMPANY
Subject to Section 7.4.5, the Company agrees to indemnify and hold
harmless each of the Purchasers, such Purchaser's officers, directors, trustees,
partners, members, employees and agents, and each person, if any, who controls
or is under common control with any Purchaser within the meaning of the
Securities Act (each, a "Purchaser Indemnitee"), against any losses, claims,
damages, liabilities or expenses, joint or several, to which such Purchaser
Indemnitees may become subject, under the Securities Act, the Exchange Act, or
any other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Company), insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof as
contemplated below) arise out of or are based upon (a) any untrue statement or
alleged untrue statement of any material fact contained or incorporated by
reference in the Registration Statement, including financial statements and
schedules, and all other documents filed as a part thereof, including any
information deemed to be a part thereof as of the time of effectiveness pursuant
to paragraph (b) of Rule 430A, or pursuant to Rule 434, under the Securities
Act, or in the prospectus related thereto, in the form first filed with the
Commission pursuant to Rule 424(b) under the Securities
19.
Act or filed as part of the Registration Statement at the time of effectiveness
if no Rule 424(b) filing is required (the "Prospectus"), or any amendment or
supplement to the Registration Statement or Prospectus, or arise out of or are
based upon the omission or alleged omission to state in any of them a material
fact required to be stated therein or necessary to make the statements in any of
them, in light of the circumstances under which they were made, not misleading,
or (b) in whole or in part any inaccuracy in the representations and warranties
of the Company contained in this Agreement, or (c) any failure of the Company to
perform its obligations under this Agreement or under applicable law, and will
reimburse each Purchaser Indemnitee for reasonable legal and other expenses as
such expenses are incurred by such Purchaser Indemnitee or controlling person in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided, however, that
the Company will not be liable in any such case to a Purchaser Indemnitee to the
extent that any such loss, claim, damage, liability or expense arises out of or
is based upon (i) an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by or on behalf of a Purchaser expressly
for use in the Registration Statement, the Prospectus or any amendment or
supplement thereto, or (ii) the failure of the applicable Purchaser to comply
with the covenants and agreements contained in Section 5.2 or 7.3 of this
Agreement regarding the resale of the Shares, or (iii) the inaccuracy of any
representations and warranties made by the applicable Purchaser in this
Agreement or (iv) any untrue statement or omission of a material fact required
to make such statement not misleading in any Prospectus that is corrected in any
subsequent Prospectus or supplement thereto that was delivered to the applicable
Purchaser a reasonable amount of time before the pertinent sale or sales by such
Purchaser or (v) a direct claim against the Company by such Purchaser Indemnitee
if such Purchaser Indemnitee is a person that is under common control with any
Purchaser (as opposed to a third-party claim against such Purchaser Indemnitee).
7.4.2 INDEMNIFICATION BY THE PURCHASER
Subject to Section 7.4.5, each Purchaser will severally and not jointly
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of the Securities Act, against any
losses, claims, damages, liabilities or expenses to which the Company, each of
its directors, each of its officers who signed the Registration Statement or
controlling person may become subject, under the Securities Act, the Exchange
Act, or any other federal or state statutory law or regulation, or at common law
or otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of such Purchaser), insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof as
contemplated below) arise out of or are based upon (i) any failure on the part
of such Purchaser to comply with the covenants and agreements contained in
Section 5.2 or 7.3 of this Agreement regarding the resale of the Shares or (ii)
the inaccuracy of any representations and warranties made by such Purchaser in
this Agreement or (iii) any untrue or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such
20.
untrue statement or alleged untrue statement or omission or alleged omission was
made in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Purchaser expressly for use
therein and such Purchaser will reimburse the Company, each of its directors,
each of its officers who signed the Registration Statement and each controlling
person for reasonable legal and other expenses as such expenses are incurred by
the Company, each of its directors, each of its officers who signed the
Registration Statement and each controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the Purchaser
shall not be liable for any such untrue or alleged untrue statement or omission
or alleged omission of which the Purchaser has delivered to the Company in
writing a correction of such untrue statement or omission of a material fact a
reasonable amount of time before the occurrence of the transaction from or upon
which such loss, claim, damage, liability or expense arose or was based.
7.4.3 INDEMNIFICATION PROCEDURE
(a) Promptly after receipt by an indemnified party under this Section
7.4 of notice of the threat or commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 7.4, promptly notify the indemnifying party in writing
of the claim; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party for
contribution or otherwise under the indemnity agreement contained in this
Section 7.4 to the extent it is not prejudiced as a result of such failure.
(b) In case any such action is brought against any indemnified party
and such indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to participate in,
and, to the extent that it may wish, jointly with all other indemnifying parties
similarly notified, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be a
conflict between the positions of the indemnifying party and the indemnified
party in conducting the defense of any such action or that there may be legal
defenses available to it or other indemnified parties that are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, which approval shall
not be unreasonably withheld, the indemnifying party will not be liable to such
indemnified party under this Section 7.4 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless:
(i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of
21.
more than one separate counsel, approved by such indemnifying party representing
all of the indemnified parties who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of action, in each
of which cases the reasonable fees and expenses of counsel shall be at the
expense of the indemnifying party.
7.4.4 CONTRIBUTION
If the indemnification provided for in this Section 7.4 is required by
clause (i) of Section 7.4.1 or clause (iii) of Section 7.4.2 but is for any
reason held to be unavailable to or otherwise insufficient to hold harmless an
indemnified party under this Section 7.4 in respect to any losses, claims,
damages, liabilities or expenses referred to in this Agreement, then each
applicable indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of any losses, claims, damages, liabilities
or expenses referred to in this Agreement in such proportion as is appropriate
to reflect the relative fault of the Company and the Purchaser in connection
with the statements or omissions, the inaccuracies in the representations and
warranties in this Agreement or the breach of covenants and agreements in this
Agreement that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and each Purchaser shall be
determined by reference to, among other things, whether the untrue or alleged
statement of a material fact or the omission or alleged omission to state a
material fact or the inaccurate or the alleged inaccurate representation or
warranty relates to information supplied by the Company or by such Purchaser and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in Section 7.4.3, any legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any action or claim.
The provisions set forth in Section 7.4.3 with respect to the notice of the
threat or commencement of any threat or action shall apply if a claim for
contribution is to be made under this Section 7.4.4; provided, however, that no
additional notice shall be required with respect to any threat or action for
which notice has been given under Section 7.4 for purposes of indemnification.
The Company and each Purchaser agree that it would not be just and equitable if
contribution pursuant to this Section 7.4 were determined solely by pro rata
allocation (even if the Purchasers were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to in this paragraph. Notwithstanding the
provisions of this Section 7.4, no Purchaser shall be required to contribute any
amount in excess of the amount by which the total proceeds received by it from
the sale of the Shares exceeds the amount of any damages that such Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Purchasers' obligations to contribute pursuant
to this Section 7.4 are several and not joint.
22.
7.4.5 LIMITS ON LIABILITY
In no event shall the aggregate liability hereunder (i) of the Company
exceed the aggregate purchase price paid by the Purchasers for the Shares with
respect to the matters described in clauses (b) and (c) of Section 7.4.1 or (ii)
of a Purchaser exceed (x) the purchase price paid by the Purchaser for the
Shares it bought hereunder with respect to the matters described in clauses (i)
and (ii) of Section 7.4.2 and (y) the gross proceeds to such Purchaser as a
result of the sale of Shares pursuant to a Registration Statement, Prospectus or
any amendment or supplement thereto with respect to the matters described in
clause (iii) of Section 7.4.2.
7.5 INFORMATION AVAILABLE
From the date of this Agreement through the date the Registration
Statement covering the resale of Shares owned by any Purchaser is no longer
effective, the Company will furnish to such Purchaser:
(a) as soon as practicable after available (but in the case of the
Company's Annual Report to Shareholders, within 90 days after the end of each
fiscal year of the Company), one copy of:
(i) its Annual Report to Shareholders (which Annual Report shall
contain consolidated financial statements audited in accordance with generally
accepted accounting principles by a national firm of certified public
accountants);
(ii) if not included in substance in the Annual Report to
Shareholders, its Annual Report on Form 10-K;
(iii) if not included in substance in any Quarterly Reports to
Shareholders, its Quarterly Reports on Form 10-Q; and
(iv) a full copy of the particular Registration Statement covering
the Shares (the foregoing, in each case, excluding exhibits); and
(b) upon the request of the Purchaser, a reasonable number of copies of
the Prospectus to supply to any other party requiring the Prospectus.
7.6 RULE 144 INFORMATION
Until the earlier of (i) the date on which the Shares may be resold by
the Purchasers without registration and without regard to any volume limitations
by reason of Rule 144(k) under the Securities Act or any other rule of similar
effect or (ii) all of the Shares have been sold pursuant to the Registration
Statement or Rule 144 under the Securities Act or any other rule of similar
effect, the Company shall file all reports required to be filed by it under the
Securities Act, the rules and regulations promulgated thereunder and the
Exchange Act so long as it is subject to such requirements and shall take such
further reasonable action to the extent required to enable the Purchasers to
sell the Shares pursuant to Rule 144 under the Securities Act (as such rule may
be amended from time to time).
23.
7.7 STOCK OPTION MATTERS AND PROHIBITION ON TOXICS
The Company shall, within thirty (30) days after the Closing Date,
adopt such amendments to, with respect to (i) and (ii) below, the Company's
stock option plans and By-laws, and, with respect to (iii) and (iv) below, the
Company's By-laws (together, the "Stock Option Plan and By-law Amendments") to
provide that, unless approved by a majority vote of the shares of common stock
of the Company outstanding, the Company shall not:
(i) grant any stock option, including stock appreciation right,
with an exercise price that is less than 100% of the fair market value of the
underlying stock on the date of grant;
(ii) reduce the exercise price of any stock option, including stock
appreciation right, outstanding or to be granted in the future; cancel any
outstanding options held by a grantee with an agreement to re-grant options to
such optionee at a lower exercise price (including entering into any "6 month
and 1 day" cancellation and re-grant scheme), whether or not the cancelled
options are put back into the available pool for grant; replace underwater
options with restricted stock in an exchange, buy-back or other similar scheme;
or replace any options with new options having a lower exercise price or
accelerated vesting schedule in an exchange, buy-back or other similar scheme;
(iii) sell or issue any security of the Company convertible into,
or exercisable or exchangeable for, shares of common stock of the Company
("Common Stock Equivalent"), having a conversion, exercise or exchange price per
share ("Equivalent Price") which is subject to downward adjustment based on the
market price of the common stock of the Company at the time of conversion,
exercise or exchange of such security into common stock of the Company (except
for appropriate adjustments made to give effect to any stock splits or stock
dividends); or
(iv) enter into (a) any equity line or similar agreement or
arrangement; or (b) any agreement to sell common stock of the Company (or any
Common Stock Equivalent) at a per share price (or, with respect to a Common
Stock Equivalent, at an Equivalent Price) that is fixed after the execution date
of the agreement, whether or not based on any predetermined price-setting
formula or calculation method. Notwithstanding the foregoing provisions of this
Section 7.7, however, a price protection clause shall be permitted in an
agreement for sale of common stock of the Company or Common Stock Equivalent, if
such clause provides for an adjustment to the price per share of common stock of
the Company or, with respect to a Common Stock Equivalent, to the Equivalent
Price (provided that such price or Equivalent Price is fixed on or before the
execution date of the agreement)(the "Fixed Price") (i) in the event that the
Company, during the period beginning on the date of the agreement and ending no
later than 90 days after the closing date of the transaction, sells shares of
its common stock or Common Stock Equivalent to another investor at a price or
Equivalent Price, as the case may be, below the Fixed Price or (ii) for
appropriate adjustments made to give effect to any stock splits or stock
dividends.
The Stock Option Plan and By-law Amendments may not be further amended
or repealed without the affirmative vote of the holders of a majority of the
shares present and entitled to vote at a duly convened meeting of stockholders.
Upon the adoption of the Stock Option Plan and By-law Amendments, the Company
shall promptly furnish a copy of such amendments to the
24.
Purchasers. The Company agrees that, prior to the adoption of the Stock Option
Plan and By-law Amendments by all necessary corporate action of the Company as
described above, the Company shall not conduct any of the actions specified in
(i), (ii), (iii) or (iv) above of this Section 7.7.
8. LEGAL FEES AND OTHER TRANSACTION EXPENSES
At the Closing, the Company agrees to pay a flat fee of $5,000 to the
State of Wisconsin Investment Board for its legal and other transaction expenses
(whether internal or external) arising in connection with the transactions
contemplated by this Agreement.
9. BROKER'S FEE
The Purchasers acknowledge that the Company intends to pay to Xxxxxxx
Xxxxx & Company LLC ("Xxxxxxx Xxxxx"}, the placement agent, a fee in respect of
the sale of the Shares to the Purchasers. Other than the foregoing payment to
Xxxxxxx Xxxxx, each of the parties to this Agreement hereby represents that, on
the basis of any actions and agreements by it, there are no other brokers or
finders entitled to compensation in connection with the sale of the Shares to
the Purchasers. The Company shall indemnify and hold harmless the Purchasers
from and against all fees, commissions or other payments owing by the Company to
Xxxxxxx Xxxxx or any other person or firm acting on behalf of the Company
hereunder.
10. NOTICES
All notices, requests, consents and other communications under this
Agreement shall be in writing, shall be mailed by first-class registered or
certified airmail, confirmed facsimile or nationally recognized overnight
express courier postage prepaid, and shall be delivered as addressed as follows:
(a) if to the Company, to:
DT Industries, Inc.
000 Xxxx 0xx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: President and General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
25.
or to such other person at such other place as the Company shall designate to
the Purchaser in writing; and
(b) if to a Purchaser, at its address or facsimile number as set forth
on the signature page to this Agreement, or at such other address or addresses
or facsimile number or numbers as may have been furnished to the Company in
writing.
Such notice shall be deemed effectively given upon confirmation of
receipt by facsimile, one business day after deposit with such overnight courier
or three days after deposit of such registered or certified airmail with the
U.S. Postal Service, as applicable.
11. MODIFICATION; AMENDMENT; TERMINATION
(a) This Agreement may not be modified or amended except pursuant to an
instrument in writing signed by the Company and each of the Purchasers;
(b) This Agreement may be terminated as to any Purchaser, at the option
of such Purchaser upon written notice to the Company, at any time after July 2,
2002 if the Closing has not occurred on or before such date.
12. ENTIRE AGREEMENT
This Agreement, including the Schedule and Exhibits attached hereto,
supersedes all other prior oral or written agreements between the parties with
respect to the matters discussed herein and contains the entire understanding
with respect to the matters covered herein.
13. HEADINGS
The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be part of
this Agreement.
14. SEVERABILITY
If any provision contained in this Agreement should be held to be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained in this Agreement shall not
in any way be affected or impaired thereby.
15. GOVERNING LAW; JURISDICTION
This Agreement shall be governed by and construed in accordance with
the laws of the state of Delaware and the federal law of the United States of
America, without giving effect to any choice of law or conflict of law provision
or rule that would cause the application of the laws of any other jurisdiction.
Nothing herein shall affect the right of the Purchasers to serve process in any
manner permitted by law or limit the right of the Purchasers to bring
proceedings against the Company in the competent courts of any jurisdiction or
jurisdictions.
26.
16. NO CONFLICTS OF INTEREST.
The Company represents, warrants, and covenants that, to its knowledge,
no trustee or employee of the State of Wisconsin Investment Board identified on
the attached Exhibit E, either directly or indirectly, (a) currently holds,
except as may be specifically set forth below, a personal interest in the
Company or any of its affiliates (together, the "Entity") or the Entity's
property or publicly-traded securities, or (b) will, in connection with the
investment made pursuant to this Agreement, receive (i) a personal interest in
the Entity or the Entity's property or publicly-traded securities or (ii)
anything of substantial economic value for his or her private benefit from the
Entity or anyone acting on its behalf. With respect to clause (a) of this
Section 16, as to ownership of a personal interest in the Entity's
publicly-traded securities, "knowledge" hereunder is based on an examination of
record holders of the Entity's securities and actual knowledge of Xxxxxxx
Xxxxxxx and Xxxx Xxxxxx and, with respect to clause (a) of this Section 16, as
to ownership of a personal interest in the Entity's property, "knowledge"
hereunder is based on the actual knowledge of Xxxxxxx Xxxxxxx and Xxxx Xxxxxx.
17. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall constitute an original, but all of which, when taken together, shall
constitute but one instrument, and shall become effective when one or more
counterparts have been signed by each party to this Agreement and delivered to
the other parties.
18. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns; provided that a Purchaser
may not assign its rights or obligations hereunder without the consent of the
Company.
19. NO THIRD-PARTY BENEFICIARIES
Except as provided in Section 7, this Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
20. PUBLICITY
Except as required by law, including, without limitation, in the
Registration Statement, or by obligations pursuant to any listing agreement
with, or requirement of, any national securities exchange or national quotation
system on which the Common Stock is listed, admitted to trading or quoted, the
Company shall not, without the prior written consent of each affected Purchaser
(i) make any public announcement or issue any press release that includes the
name of such Purchaser or any Affiliate of such Purchaser with respect to the
transactions contemplated by the Agreement or (ii) otherwise use in advertising
or publicity the names of any Purchaser, any Affiliates of any Purchaser, any
directors, officers, partners, members, trustees or employees of any Purchaser
or any of its Affiliates, any of the funds or accounts managed by a Purchaser or
any of its Affiliates, or any trade name, trademark, trade device, service xxxx,
symbol or any abbreviation, contraction or simulation thereof of any Purchaser
of any of its Affiliates.
27.
21. MASSACHUSETTS BUSINESS TRUST
A copy of the Agreement and Declaration of Trust of each Purchaser that
is a fund or series investment company (each, a "Fund") that is a Massachusetts
business trust (each, a "Trust") is on file with the Secretary of the
Commonwealth of Massachusetts. The Company and the other Purchasers acknowledge
and agree that this Agreement is not executed on behalf of or binding upon any
of the trustees, officers, directors or shareholders of a Trust individually,
but is binding upon the applicable Fund and its assets and property. The Company
agrees that no trustee, officer, director or shareholder of a Trust or the
applicable Fund may be held personally liable or responsible for any obligations
of a Fund arising out of this Agreement. With respect to all obligations of the
Fund arising out of this Agreement, the Company shall look for payment or
satisfaction of any claim solely to the assets and property of the Fund. The
Company is expressly put on notice that the rights and obligations of each
series of shares of a Trust under its Agreement and Declaration of Trust are
separate and distinct from those of any and all other series.
[Signature pages follow]
28.
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
DT INDUSTRIES, INC.
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Its:
------------------------------
STATE OF WISCONSIN INVESTMENT BOARD
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Its:
------------------------------
Address:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
XXXXXX VARIABLE TRUST -
XXXXXX VT SMALL CAP VALUE FUND
By: Xxxxxx Investment Management, LLC
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Its:
------------------------------
Address:
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
2.
XXXXXX INVESTMENT FUNDS -
XXXXXX SMALL CAP VALUE FUND
By: Xxxxxx Investment Management, LLC
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile:000-000-0000
XXXXXX WORLD TRUST II -
XXXXXX U.S. SMALL CAP VALUE EQUITY
FUND
By: The Xxxxxx Advisory Company, LLC
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile:000-000-0000
FIDELITY PURITAN TRUST:
FIDELITY LOW-PRICED STOCK FUND
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile:000-000-0000
3.
NTC - IRONWOOD CAPITAL
MANAGEMENT XXXX SOUTH MASTER
PENSION
By: Ironwood Capital Management, LLC,
its investment adviser
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
00 Xxxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile:000-000-0000
NTCC FOR EMPLOYEES BENEFIT TRUST
By: Ironwood Capital Management, LLC,
its investment adviser
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
00 Xxxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile:000-000-0000
NTCC FOR GRANTORS TRUST
By: Ironwood Capital Management, LLC,
its investment adviser
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
4.
00 Xxxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile:000-000-0000
PNC/HILLVIEW ALPHA FUND
By: Ironwood Capital Management, LLC,
its investment adviser
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
00 Xxxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile:000-000-0000
IDEX/ISABELLE SMALL CAP VALUE FUND
By: Ironwood Capital Management, LLC,
its investment adviser
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
00 Xxxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile:000-000-0000
5.
ICM/ISABELLE SMALL CAP VALUE FUND
By: Ironwood Capital Management, LLC,
its investment adviser
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
00 Xxxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
UNIVERSITY OF NOTRE DAME
IRONWOOD CAPITAL MANAGEMENT
By: Ironwood Capital Management, LLC,
its investment adviser
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
00 Xxxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
NTCC OREGON
By: Ironwood Capital Management, LLC,
its investment adviser
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
6.
00 Xxxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
ROYCE OPPORTUNITY FUND #6623
By: Royce & Associates, LLC,
its investment adviser
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Facsimile:000-000-0000
DJURSHOLM INVESTMENTS
By: Royce & Associates, LLC,
its investment adviser
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Facsimile:000-000-0000
7.
HOV INVESTMENTS
By: Royce & Associates, LLC,
its investment adviser
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
INGELSTORP INVESTMENTS
By: Royce & Associates, LLC,
its investment adviser
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
CAXTON INTERNATIONAL LIMITED
By: Caxton Associates, L.L.C., its trading
adviser and attorney-in-fact
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
8.
c/o Prime Management Limited
Mechanics Xxxxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx XX 00 Xxxxxxx
Xxxxxxxxx: 441-295-3926
with a copy to:
Caxton Associates, L.L.C.
Princeton Plaza
Building 2
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile: 000-000-0000
LIBERTYVIEW FUNDS, L.P.
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
000 Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Facsimile:(000) 000-0000
9.
LIBERTYVIEW FUND, LLC
By: /s/ Authorized Signature
-------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
000 Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
10.
