1
5,000,000 SHARES
CTB INTERNATIONAL CORP.
COMMON STOCK
UNDERWRITING AGREEMENT
________________, 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX X. XXXX & COMPANY
CHASE SECURITIES INC.
As representatives of the
several underwriters
named in Schedule I hereto
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
CTB International Corp., a Delaware corporation (the
"Company"), proposes to sell an aggregate of 5,000,000 shares of common stock,
par value $.01 per share, of the Company (the "Firm Shares"), to the several
underwriters named in Schedule I hereto (the "Underwriters"). The stockholders
of the Company named in Schedule II hereto (collectively, the "Selling
Stockholders"), severally propose to sell to the several Underwriters not more
than 750,000 additional shares of common stock, par value $.01 per share, of the
Company (the "Additional Shares"), if requested by the Underwriters as provided
in Section 2 hereof. The Firm Shares and the Additional Shares are herein
collectively called the Shares. The shares of common stock of the Company to be
outstanding after giving effect to the transactions contemplated hereby are
hereinafter referred to as the Common Stock. The Company and the Selling
Stockholders are hereinafter collectively called the Sellers. CTB, Inc., a
wholly-owned subsidiary of the Company, is hereinafter called CTB.
All or a substantial portion of the proceeds from the sale of
the Firm Shares will be used to repay indebtedness incurred in connection with
(i) the acquisition of all of the assets of the Grain Systems Division (the
"Grain Division") of Xxxxxx Manufacturing Company, a Delaware corporation
("Xxxxxx"), by CTB (the "Xxxxxx Acquisition"), and (ii) the acquisition of all
of the issued shares in the share capital of Fancom Holding B.V., a Netherlands
corporation ("Fancom"), by Chore-Time Xxxxx Holding B.V., a Netherlands
corporation ("CTB Holding") (the "Fancom Acquisition" and collectively with the
Xxxxxx Acquisition, the "Acquisitions"). The Xxxxxx Acquisition was effected
pursuant to the Asset Purchase Agreement, dated as of March 31, 1997,
2
between Xxxxxx and CTB (the "Xxxxxx Acquisition Agreement"). The Fancom
Acquisition was effected pursuant to the Share Purchase Agreement, dated as of
May 1, 1997, by and among CTB Holding, Fancom and each of the Selling
Shareholders identified on the first page thereof (the "Fancom Acquisition
Agreement"). The Xxxxxx Acquisition Agreement and all related agreements and
documents and the Fancom Acquisition Agreement and all related agreements and
documents are collectively referred to herein as the Transaction Documents.
Prior to or concurrently with the issuance and sale of the
Firm Shares, the Company will (i) redeem 15,000 shares of the outstanding 6%
Series A Preferred Stock of the Company (the "Existing Preferred Stock") at a
redemption price of $1,000 per share (the "Redemption") and (ii) exchange (the
"Exchange") 9,069 of the Existing Preferred Stock for ________ shares of common
stock, par value $.01 per share (the "Common Stock"), of the Company, in each
case pursuant to a certain agreement (the "Exchange/Redemption Agreement").
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively called the "Act"), a registration statement on Form S-1 including
a prospectus relating to the Shares, which may be amended. The registration
statement as amended at the time when it becomes effective, including a
registration statement (if any) filed pursuant to Rule 462(b) under the Act
increasing the size of the offering registered under the Act and any other
post-effective amendment to the registration statement and information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Act, is hereinafter referred to as the
Registration Statement; and the prospectus in the form first used to confirm
sales of Shares is hereinafter referred as the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each Underwriter
agrees, severally and not jointly, to purchase from the Company at a price per
share of $______ (the "Purchase Price") the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, (i) each Selling
Stockholder agrees, severally and not jointly, to sell the number of Additional
Shares set forth opposite such Selling Stockholder's name in Schedule II, and
(ii) the Underwriters shall have the right to purchase, severally and not
jointly, up to an aggregate 750,000 Additional Shares from such Selling
Stockholders at the Purchase Price. Additional Shares may be purchased solely
for the purpose of covering over-allotments made in connection with the offering
of the Firm Shares. The Underwriters may exercise their right to purchase
Additional Shares in whole or in part from time to time by giving written notice
thereof to the Company within 30 days after the date of this Agreement. You
shall give any such notice on behalf of the Underwriters and such notice shall
specify the aggregate number of Additional Shares to be purchased pursuant to
such exercise and the date for payment and delivery thereof. The date specified
in any such notice shall be a business day (i) no earlier than the Closing Date
(as
2
3
hereinafter defined), (ii) no later than ten business days after such notice has
been given and (iii) no earlier than two business days after such notice has
been given. If any Additional Shares are to be purchased, each Underwriter,
severally and not jointly, agrees to purchase from the Selling Stockholders the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as you may determine) which bears the same proportion to the total number
of Additional Shares to be purchased from the Selling Stockholders as the number
of Firm Shares set forth opposite the name of such Underwriter in Schedule I
bears to the total number of Firm Shares.
The Sellers hereby agree, severally and not jointly, and the
Company shall, concurrently with the execution of this Agreement, deliver an
agreement executed by (i) each of the directors and officers of the Company who
is a stockholder and not a Selling Stockholder, and (ii) each other stockholder
listed on Annex I hereto, pursuant to which each such person agrees, not to
offer, sell, contract to sell, grant any option to purchase, or otherwise
dispose of any common stock of the Company or any securities convertible into or
exercisable or exchangeable for such common stock or in any other manner
transfer all or a portion of the economic consequences associated with the
ownership of any such common stock, except to the Underwriters pursuant to this
Agreement, for a period of 180 days after the date of the Prospectus without the
prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
Notwithstanding the foregoing, during such period (i) the Company may grant
stock options pursuant to the Company's existing stock option plan and (ii) the
Company may issue shares of its common stock upon the exercise of an option or
warrant.
3. Terms of Public Offering. The Sellers are advised by you
that the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the effective date of the Registration
Statement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Firm Shares shall be made at 10:00 A.M., New York City time, on
the third or fourth business day unless otherwise permitted by the Commission
pursuant to Rule 15c6-1 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (the "Closing Date") following the date of the initial public
offering, at such place as you shall designate. The Closing Date and the
location of delivery of and the form of payment for the Firm Shares may be
varied by agreement between you and the Company.
Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at such place as you
shall designate at 10:00 A.M., New York City time, on the date specified in the
applicable exercise notice given by you pursuant to Section 2 (an "Option
Closing Date"). Any such Option Closing Date and the location of delivery of and
the form of payment for such Additional Shares may be varied by agreement
between you and the Sellers.
Certificates for the Shares shall be registered in such names
and issued in such denominations as you shall request in writing not later than
two full business days prior to the
3
4
Closing Date or an Option Closing Date, as the case may be. Such certificates
shall be made available to you for inspection not later than 9:30 A.M., New York
City time, on the business day next preceding the Closing Date or the applicable
Option Closing Date, as the case may be. Certificates in definitive form
evidencing the Shares shall be delivered to you on the Closing Date or the
applicable Option Closing Date, as the case may be, with any transfer taxes
thereon duly paid by the respective Sellers, for the respective accounts of the
several Underwriters, against payment of the Purchase Price therefor by wire
transfer of immediately available funds to the order of the applicable Sellers.
5. Agreements of the Company. The Company agrees with you:
(a) To use its reasonable best efforts to cause the
Registration Statement to become effective at the earliest possible time.
(b) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment to it becomes effective, (ii) of
any request by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information, (iii)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of the suspension of qualification of the
Shares for offering or sale in any jurisdiction, or the initiation of any
proceeding for such purposes, and (iv) of the happening of any event during the
period referred to in paragraph (e) below which makes any statement of a
material fact made in the Registration Statement or the Prospectus untrue or
which requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements therein not
misleading. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal or lifting of such order at the
earliest possible time.
(c) To furnish to you, without charge, two signed copies of
the Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, and to furnish to you and each
Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as you may reasonably request.
(d) Not to file any amendment or supplement to the
Registration Statement, whether before or after the time when it becomes
effective, or to make any amendment or supplement to the Prospectus of which you
shall not previously have been advised or to which you shall reasonably object;
and to prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its reasonable best efforts to
cause the same to become promptly effective.
(e) Promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period (prior to nine
months after the date of the Prospectus) as in the
4
5
opinion of counsel for the Underwriters a prospectus is required by law to be
delivered in connection with sales by an Underwriter or a dealer, to furnish to
each Underwriter and dealer as many copies of the Prospectus (and of any
amendment or supplement to the Prospectus) as such Underwriter or dealer may
reasonably request.
(f) If during the period specified in paragraph (e) any event
shall occur as a result of which, in the opinion of counsel for the Underwriters
it becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with any law, forthwith to prepare and file
with the Commission an appropriate amendment or supplement to the Prospectus so
that the statements in the Prospectus, as so amended or supplemented, will not
in the light of the circumstances when it is so delivered, be misleading, or so
that the Prospectus will comply with law, and to furnish to each Underwriter and
to such dealers as you shall specify, such number of copies thereof as such
Underwriter or dealers may reasonably request.
(g) Prior to any public offering of the Shares, to cooperate
with you and counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request, to continue such qualification in effect so long as required
for distribution of the Shares and to file such consents to service of process
or other documents as may be necessary in order to effect such registration or
qualification, provided that the Company shall not be required to qualify as a
foreign corporation or to file a consent to service of process in any
jurisdiction or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject.
(h) To mail and make generally available to its stockholders
as soon as reasonably practicable an earnings statement covering a period of at
least twelve months after the effective date of the Registration Statement (but
in no event commencing later than 90 days after such date) which shall satisfy
the provisions of Section 11 (a) of the Act.
(i) During the period of five years after the date of this
Agreement, (i) to mail as soon as reasonably practicable after the end of each
fiscal year to the record holders of its Common Stock a financial report of the
Company and its subsidiaries on a consolidated basis (and a similar financial
report of all unconsolidated subsidiaries, if any), all such financial reports
to include a consolidated balance sheet, a consolidated statement of operations,
a consolidated statement of cash flows and a consolidated statement of
stockholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
independent certified public accountants, and (ii) to mail and make generally
available as soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and a
consolidated statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such period, and
for the period from the beginning of such year to the
5
6
close of such quarterly period, together with comparable information for the
corresponding periods of the preceding year.
(j) During the period referred to in paragraph (i), to furnish
to you as soon as available a copy of each report or other publicly available
information of the Company mailed to the holders of Common Stock or filed with
the Commission and such other publicly available information concerning the
Company and its subsidiaries as you may reasonably request.
(k) To pay all costs, expenses, fees and taxes incident to (i)
the preparation, printing, filing and distribution under the Act of the
Registration Statement (including financial statements and exhibits), each
preliminary prospectus and all amendments and supplements to any of them prior
to or during the period specified in paragraph (e), (ii) the printing and
delivery of the Prospectus and all amendments or supplements to it during the
period specified in paragraph (e), (iii) the printing and delivery of this
Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other
agreements, memoranda, correspondence and other documents printed and delivered
in connection with the offering of the Shares (including in each case any
disbursements of counsel for the Underwriters relating to such printing and
delivery), (iv) the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of the several states (including in
each case the fees and disbursements of counsel for the Underwriters relating to
such registration or qualification and memoranda relating thereto not to exceed
$25,000), (v) the filing fees incident to securing any required review by the
Corporate Financing Department of NASD Regulation, Inc. (the "NASDR") of the
terms of the sale of the Shares and the fees, disbursements and expenses for
counsel for the Underwriters in connection with the securing of any required
review by the NASDR of the terms of the sale of the Shares, (vi) the listing of
the Shares on the Nasdaq National Market, (vii) furnishing such copies of the
Registration Statement, the Prospectus and all amendments and supplements
thereto as may be requested for use in connection with the offering or sale of
the Shares by the Underwriters or by dealers to whom Shares may be sold and
(viii) the performance by the Sellers of their other obligations under this
Agreement.
(l) To use its best efforts to maintain the inclusion of such
Common Stock in the Nasdaq National Market (or on a national securities
exchange) for a period of five years after the effective date of the
Registration Statement.
(m) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the
Company prior to the Closing Date or any Option Closing Date, as the case may
be, and to satisfy all conditions precedent to the delivery of the Shares.
6. Representations and Warranties of the Company and CTB. The
Company and CTB jointly and severally represent and warrant to each Underwriter
that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
6
7
(b) (i) Each part of the Registration Statement, when such
part became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act and (iii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph (b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(c) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Act, and each Registration Statement
filed pursuant to Rule 462(b) under the Act, if any, complied when so filed in
all material respects with the Act; and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(d) The Company and each of its significant subsidiaries as
defined in Rule 405 under the Act (the "Significant Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as it is currently being conducted and to
own, lease and operate its properties, and each is duly qualified and is in good
standing as a foreign corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified would
not have a material adverse effect on the business, financial condition or
results of operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect").
(e) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's Significant Subsidiaries
have been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature, except as
described in the Registration Statement.
(f) All the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights; and the Shares have been
duly authorized and, when issued and delivered to the Underwriters against
payment therefor as provided by this Agreement, will be validly issued, fully
paid and non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights.
7
8
(g) The authorized capital stock of the Company, including the
Common Stock, conforms as to legal matters to the description thereof contained
in the Prospectus.
(h) Neither the Company nor any of its Significant
Subsidiaries is (i) in violation of its respective charter or by-laws or (ii) in
default in the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness or in any
other agreement, indenture, lease or instrument material to the conduct of the
business of the Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound, except where such default
would not have a Material Adverse Effect.
(i) The execution, delivery and performance of this Agreement
by the Company and CTB, compliance by the Company and CTB with all the
provisions hereof and the consummation of the transactions contemplated hereby
and the consummation of the Exchange and the Redemption will not require any
consent, approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except as such may be required
under the securities or Blue Sky laws of the various states and except as would
not have a Material Adverse Effect) and will not conflict with or constitute a
breach of any of the terms or provisions of, or a default under, (i) any of the
respective charters or by-laws of the Company or any of its subsidiaries, (ii)
any agreement, indenture or other instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
their respective property is bound except as would not have a Material Adverse
Effect, or (iii) violate or conflict with any laws, administrative regulations
or rulings or court decrees applicable to the Company or any of its subsidiaries
or their respective property except as would not have a Material Adverse Effect.
(j) This Agreement has been duly authorized, executed and
delivered by the Company and CTB and is a valid and binding agreement of the
Company and CTB, enforceable against the Company and CTB in accordance with its
terms except as enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting the rights of
creditors generally, by general principles of equity and except as rights to
indemnity and contribution hereunder may be limited by applicable law.
(k) Except as otherwise set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company or any of its
Significant Subsidiaries is a party or of which any of their respective property
is the subject, and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated, except as would not have a Material Adverse
Effect. No contract or document of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement is not so described or filed as required.
(l) None of the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), nor any
federal or state law relating to discrimination in the hiring, promotion or pay
of
8
9
employees nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case would have a Material
Adverse Effect. The costs and liabilities of complying with Environmental Laws
would not, singly or in the aggregate, have a Material Adverse Effect.
(m) The Company and each of its subsidiaries have such
permits, licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and operate its respective
properties and to conduct its business except where the failure to have any such
permits would not, singly or in the aggregate, have a Material Adverse Effect;
the Company and each of its subsidiaries have fulfilled and performed all of
their obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or termination
thereof or results in any other impairment of the rights of the holder of any
such permit except as would not have a Material Adverse Effect.
(n) Except as otherwise set forth in the Prospectus or such as
would not result in a Material Adverse Effect, the Company and each of its
subsidiaries have good and marketable title, free and clear of all liens,
claims, encumbrances and restrictions except liens for taxes not yet due and
payable, to all property and assets described in the Registration Statement as
being owned by it. All leases to which the Company or any of its subsidiaries
are a party are valid and binding and no default has occurred or is continuing
thereunder, except as would not have a Material Adverse Effect, and the Company
and its subsidiaries enjoy peaceful and undisturbed possession under all such
leases to which any of them is a party as lessee with such exceptions as do not
interfere with the use made by the Company or such subsidiary except as would
not have a Material Adverse Effect.
(o) The Company and its subsidiaries maintain reasonably
adequate insurance.
(p) The respective firm of accountants that has certified or
shall certify the applicable consolidated financial statements and supporting
schedules of the Company, the Company's predecessor, Xxxxxx and Fancom filed or
to be filed with the Commission as part of the Registration Statement and the
Prospectus are independent public accountants as required by the Act.
(q) The consolidated historical and pro forma financial
statements, together with related schedules and notes, set forth in the
Prospectus and the Registration Statement comply as to form in all material
respects with the requirements of the Act. Such historical financial statements
fairly present the consolidated financial position of the Company and its
subsidiaries at the respective dates indicated and the results of their
operations and their cash flows for the respective periods indicated, in
accordance with generally accepted accounting principles consistently applied
throughout such periods. Such pro forma financial statements have been prepared
on a basis consistent with such historical statements, except for the pro forma
adjustments specified therein, and give effect to assumptions made on a
reasonable basis and present fairly the transactions described in the
Prospectus. The other financial information and data included in the Prospectus
and in the Registration Statement, historical and pro forma, are, in all
material respects, accurately
9
10
presented and prepared on a basis consistent with such financial statements and
the books and records of the Company, the Company's predecessor, Xxxxxx and
Fancom.
(r) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(s) No holder of any security of the Company has any right to
require registration of shares of Common Stock or any other security of the
Company, except as otherwise set forth in the Registration Statement.
(t) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(u) Except as disclosed in the Prospectus, there are no
business relationships or related party transactions required to be disclosed
therein by Item 404 of Regulation S-K of the Commission.
(v) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been filed, other
than those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and other
charges due pursuant to such returns or pursuant to any assessment received by
the Company or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
(w) There is (i) no significant unfair labor practice
complaint pending against the Company or any of its subsidiaries or, to the best
knowledge of the Company, threatened against any of them, before the National
Labor Relations Board or any state or local labor relations board, and no
significant grievance or more significant arbitration proceeding arising out of
or under any collective bargaining agreement is so pending against the Company
or any of its subsidiaries or, to the best knowledge of the Company, threatened
against any of them, and (ii) no significant strike, labor dispute, slowdown or
stoppage pending against the Company or any of its subsidiaries or, to the best
knowledge of the Company, threatened against it or any of its subsidiaries
except for such actions specified in clause (i) or (ii) above, which, singly or
in the aggregate as would not have a Material Adverse Effect.
(x) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens related to
or entitling any person to purchase or otherwise to acquire any shares of the
capital stock of, or other ownership interest in, the Company or any subsidiary
thereof except as otherwise disclosed in the Registration Statement.
(y) Each of the Company and its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance that:
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
10
11
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(z) the Acquisitions have been consummated in accordance with
the terms of the Transaction Documents and the Company or its subsidiaries own
all or substantially all of the assets of the Grain Division and the entire
equity interest in Fancom.
(aa) The Exchange/Redemption Agreement has been duly
authorized, executed and delivered by the Company and each of the other parties
thereto and constitutes a valid and legally binding agreement of the Company and
each of the other parties thereto, enforceable against the Company and each of
the other parties thereto in accordance with its terms except as enforcement may
be limited by bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting the rights of creditors generally or by general
principles of equity.
(bb) The Company has delivered to you a true and complete copy
of each of the Transaction Documents and Exchange/Redemption Agreement that have
been executed and delivered prior to the date of this Agreement, together with
all related agreements and all schedules and exhibits thereto, and there have
been no amendments, alterations, modifications or waivers of any of the
provisions of any of the Transaction Documents since their date of execution
from the form in which it has been delivered to you.
(cc) After giving effect to the Redemption and the Exchange,
no shares of Existing Preferred Stock will be outstanding.
(dd) The Company has filed a registration statement pursuant
to Section 12(g) of the Exchange Act to register the Common Stock, has filed an
application to list the Shares on the Nasdaq National Market, and has received
notification that the listing has been approved, subject to notice of issuance.
7. Representations and Warranties of the Selling Stockholders.
Each Selling Stockholder severally represents and warrants to each Underwriter
that:
(a) Such Selling Stockholder is the lawful owner of the Shares
to be sold by such Selling Stockholder pursuant to this Agreement and has, and
on the Closing Date (and Option Closing Date, if applicable) will have, good and
marketable title to such Shares, free of all restrictions on transfer, liens,
encumbrances, security interests and claims whatsoever.
(b) Upon delivery of and payment for such Shares pursuant to
this Agreement, good and clear title to such Shares will pass to the
Underwriters, free of all restrictions on transfer, lies, encumbrances, security
interests and claims whatsoever.
11
12
(c) Such Selling Stockholder has, and on the Closing Date will
have, full legal right, power and authority to enter into this Agreement and to
sell, assign, transfer and deliver such Shares in the manner provided herein,
and this Agreement has been duly authorized, executed and delivered by the
Selling Stockholders and is a valid and binding agreement of the Selling
Stockholders enforceable in accordance with its terms, except as rights to
indemnity and contribution hereunder may be limited by applicable law.
(d) The power of attorney signed by such Selling Stockholder
appointing Xxxxx X. Xxxxxx and Xxx X. Xxxxxxxxxxx, or either one of them, as its
attorney-in-fact to the extent set forth therein with regard to the transactions
contemplated hereby and by the Registration Statement has been duly authorized,
executed and delivered by or on behalf of such Selling Stockholder and is a
valid and binding instrument of such Selling Stockholder enforceable in
accordance with its terms, and, pursuant to such power of attorney, such Selling
Stockholder has authorized Xxxxx X. Xxxxxx and Xxx X. Xxxxxxxxxxx, or either one
of them, to execute and deliver on his behalf this Agreement and any other
document necessary or desirable in connection with transactions contemplated
hereby and to deliver the Shares to be sold by such Selling Stockholder pursuant
to this Agreement.
(e) Such Selling Stockholder had not taken, and will not take,
directly or indirectly, any action designed to, or which might reasonably be
expected to, cause or result in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Shares
pursuant to the distribution contemplated by this Agreement, and other than as
permitted by the Act, such Selling Stockholder has not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares.
(f) The execution, delivery and performance of this Agreement
by such Selling Stockholder, compliance by such Selling Stockholder with all the
provisions hereof and the consummation of the transactions contemplated hereby
will not require any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental body (except
as such may be required under the securities or Blue Sky laws of the various
states except as would not have a Material Adverse Effect) and will not conflict
with or constitute a breach of any of the terms or provisions of, or a default
under, (i) the organizational documents of such Selling Stockholder, if not an
individual, (ii) any agreement, indenture or other instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder or property
of such Selling Stockholder is bound except as would not have a Material Adverse
Effect, or (iii) violate or conflict with any laws, administrative regulations
or rulings or court decrees applicable to such Selling Stockholder or property
of such Selling Stockholder except as would not have a Material Adverse Effect.
(g) Such parts of the Registration Statement under the caption
"Principal Stockholders" which specifically relate to such Selling Stockholder
do not, and will not on the Closing Date (and any Option Closing Date, if
applicable), contain any untrue statement if a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of circumstances under which they were made, not
misleading.
12
13
(h) At any time during the period described in paragraph 5(e)
hereof, if there is any change in the information referred to in paragraph 7(g)
above, the Selling Stockholders will immediately notify you of such change.
8. Indemnification. (a) The Company and CTB, jointly and
severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages, liabilities and judgments caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriters furnished in writing to the Company by or on behalf of any
Underwriter through you expressly for use therein. Each Selling Stockholder
severally agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, to the same extent as to the
foregoing indemnity from the Company and CTB, but only with reference to
information furnished to the Company by or on behalf of the Selling Stockholders
expressly for use in the Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus. Notwithstanding the foregoing, the
aggregate liability of any Selling Stockholder pursuant to the provisions of
this paragraph shall be limited to an amount equal to the aggregate net purchase
price received by such Selling Stockholder from the sale of such Selling
Stockholder's Shares hereunder; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages and liabilities and judgments purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended and supplemented) would have cured the defect giving rise to such
loss, claim, damage, liability or judgment.
(b) In case any action shall be brought against any
Underwriter or any person controlling such Underwriter, based upon any
preliminary prospectus, the Registration Statement or the Prospectus or any
amendment or supplement thereto and with respect to which indemnity may be
sought against any indemnifying party under Section 8(a), such Underwriter shall
promptly notify such indemnifying party in writing and the indemnifying party
shall assume the defense thereof, including the employment of counsel reasonably
satisfactory to the indemnified party and payment of all fees and expenses. Any
Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person
13
14
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense and employ counsel or (iii) the named
parties to any such action (including any impleaded parties) include both such
Underwriter or such controlling person and the indemnifying party, as the case
may be, and such Underwriter or such controlling person shall have been advised
by such counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to an indemnifying
party, as the case may be (in which case an indemnifying party shall not have
the right to assume the defense of such action on behalf of such Underwriter or
such controlling person, it being understood, however, that an indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all such Underwriters and controlling persons, which firm shall be
designated in writing by Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation and
that all such fees and expenses shall be reimbursed as they are incurred). No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent, but if settled with the written consent of
such indemnifying party, such indemnifying party agrees to indemnify and hold
harmless any Underwriter and any such controlling person from and against any
loss or liability by reason of such settlement (limited in the case of Selling
Stockholders as provided in Section 8(a)). Notwithstanding the immediate
preceding sentence, if in any case where the fees and expenses of counsel are at
the expense of the indemnifying party and an indemnified party shall have
requested the indemnifying party to reimburse the indemnified party for such
fees and expenses of counsel as incurred, such indemnifying party agrees that it
shall be liable for any settlement of any action effected without its written
consent if (i) such settlement is entered into more than ten business days after
the receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall have failed to reimburse the indemnified party in
accordance with such request for reimbursement prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and each
Selling Stockholder and each person, if any, controlling such Selling
Stockholder within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the
indemnifying parties under Section 8(a) to each Underwriter but only with
reference to information relating to such Underwriter furnished in writing by or
on behalf of such Underwriter through you expressly for use in the Registration
Statement, the Prospectus or any preliminary prospectus. In case any action
shall be brought against the Company, any of its directors, any such officer or
any person controlling the Company, or any Selling Stockholder or any such
person controlling such Selling Stockholder based on the Registration Statement,
the Prospectus or any preliminary prospectus and in respect of which indemnity
may be
14
15
sought against any Underwriter, the Underwriter shall have the rights and duties
given to the indemnifying parties under Section 8(b) (except that if any such
indemnifying party shall have assumed the defense thereof, such Underwriter
shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such Underwriter), and the Company, its directors,
any such officers and any person controlling the Company and the Selling
Stockholders and any person controlling such Selling Stockholders shall have the
rights and duties given to the Underwriter, by Section 8(b) hereof.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the indemnifying parties under Section
8(a) on the one hand and the Underwriters on the other hand from the offering of
the Shares or (ii) if the allocation provided by clause (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 indemnifying parties and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the indemnifying parties and
the Underwriters shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
indemnifying parties, and the total underwriting discounts and commissions
received by the Underwriters, bear to the total price to the public of the
Shares, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the indemnifying parties and the Underwriters
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by an indemnifying party or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
Each of the indemnifying parties and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
8(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages 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
15
16
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 to contribute pursuant to this
Section 8(d) are several in proportion to the respective number of Shares
purchased by each of the Underwriters hereunder and not joint.
(e) Each of the indemnifying parties will accept the
jurisdiction of any state or federal court in the State of New York in any
action, suit or proceeding which may be instituted by and Underwriter or person
controlling an Underwriter asserting a claim for indemnification or contribution
under or pursuant to this Section 8, and waives, to the fullest extent permitted
by applicable law, any defense based upon lack of personal jurisdiction or
venue. A copy of such process shall be sent or given to such indemnifying party
at the address for notices specified in Section 12 hereof.
9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and
CTB contained in this Agreement shall be true and correct on the Closing Date
with the same force and effect as if made on and as of the Closing Date.
(b) The Registration Statement shall have become effective not
later than 5:00 P.M. (and in the case of a Registration Statement filed under
Rule 462 (b) of the Act, not later than 10:00 p.m.), New York City time, on the
date of this Agreement or at such later date and time as you may approve in
writing, and at the Closing Date no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before or contemplated by
the Commission.
(c) (i) Since the date of the latest balance sheet included in
the Registration Statement and the Prospectus there shall not have been any
material adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the earnings,
affairs or business prospects, whether or not arising in the ordinary course of
business, of the Company and its subsidiaries, taken as a whole, (ii) since the
date of the latest balance sheet included in the Registration Statement and the
Prospectus there shall not have been any change, or any development involving a
prospective material adverse change, in the capital stock or in the long-term
debt of the Company and its subsidiaries from that set forth in the Registration
Statement and Prospectus, (iii) the Company and its subsidiaries shall have no
liability or obligation, direct or contingent, which is material to the Company
and its subsidiaries, taken as a whole, other than those reflected in the
Registration Statement and the Prospectus, (iv) on the Closing Date you shall
have received a certificate, dated the Closing Date, executed on behalf of the
Company, signed by the President, Chief Executive Officer or any Vice President
and a principal financial or accounting officer of the Company, confirming the
matters set forth in paragraphs (a), (b), and (c) of this Section 9, and (v) on
the Closing Date you shall have received a certificate, dated the Closing Date,
executed on behalf of CTB, signed by the President, Chief Executive Officer or
16
17
any Vice President and a principal financial or accounting officer of CTB,
confirming the matters set forth in paragraph (a) of this Section 9.
(d) All of the representations and warranties of the Selling
Stockholders contained in this Agreement shall be true and correct on the
Closing Date with the same force and effect as if made on and as of the Closing
Date and you shall have received a certificate to such effect, dated the Closing
Date, from each Selling Stockholder (or its attorney-in-fact).
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Xxxxxxx X. Xxxxxxx, Esq. General Counsel for the Company and CTB and counsel
for certain of the Selling Stockholders, to the effect that:
(i) the Company and each of its Significant Subsidiaries has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation and has
the corporate power and authority required to carry on its business as
it is currently being conducted and to own, lease and operate its
properties;
(ii) the Company and each of its Significant Subsidiaries is
duly qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the nature of
its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not
have a Material Adverse Effect;
(iii) all of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's Significant
Subsidiaries have been duly and validly authorized and issued and are
fully paid and non-assessable, and to such counsel's knowledge are
owned by the Company, free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature, except as
described in the Registration Statement;
(iv) all the outstanding shares of Common Stock (including the
Shares to be sold by the Selling Stockholders) have been duly
authorized and validly issued and are fully paid, non-assessable and
not subject to any preemptive or similar rights;
(v) the Shares to be issued and sold by the Company hereunder
have been duly authorized, and when issued and delivered to the
Underwriters against payment therefor as provided by this Agreement,
will have been validly issued and will be fully paid and
non-assessable, and the issuance of such Shares is not subject to any
preemptive or similar rights;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company, CTB and each of the Selling Stockholders;
17
18
(vii) the Exchange/Redemption Agreement has been duly
authorized, executed and delivered by the Company and each of the other
parties thereto and constitutes a valid and binding agreement of the
Company and each of the other parties thereto, enforceable against the
Company and each of the other parties thereto in accordance with its
terms except as enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting the
rights of creditors generally or by general principles of equity;
(viii) the authorized capital stock of the Company, including
the Common Stock, conforms as to legal matters to the description
thereof contained in the Prospectus;
(ix) the Registration Statement has become effective under the
Act, and to the knowledge of such counsel, no stop order suspending its
effectiveness has been issued and no proceedings for that purpose are
pending before or contemplated by the Commission;
(x) the statements under the captions "Risk Factors--Possible
Anti-Takeover Effect of Certain Charter and By-Law Provisions",
"Business--Patents and Trademarks", "Business--Product Liability and
Legal Proceedings", "Business--Regulatory and Environmental Matters",
"Management--Compensation Pursuant to Benefit Plans and Arrangements",
"Certain Relationships and Related Transactions", "Description of
Capital Stock", "Description of Credit Agreement" and "Shares Available
for Future Sale" in the Prospectus and Items 14 and 15 of Part II of
the Registration Statement insofar as such statements constitute a
summary of legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such legal
matters, documents and proceedings;
(xi) neither the Company nor any of its Significant
Subsidiaries is (i) in violation of its respective charter or bylaws
and (ii) to such counsel's knowledge, neither the Company nor any of
its subsidiaries is in default in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any other agreement, indenture,
lease or instrument material to the conduct of the business of the
Company and its subsidiaries, taken as a whole, to which the Company or
any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound, except where such
default would not have a Material Adverse Effect;
(xii) the execution, delivery and performance of this
Agreement by the Company, CTB and each Selling Stockholder, compliance
by the Company, CTB and each Selling Stockholder with all the
provisions hereof and the consummation of the transactions provided for
hereby and the consummation of the Exchange and the Redemption will not
require any consent, approval, authorization or other order of any
court regulatory body, administrative agency or other governmental body
(except as such may be required under the Act or other securities or
Blue Sky laws and except as would not have a Material Adverse Effect)
and will not conflict with or constitute a breach of any of the terms
or provisions of, or a default under, (i) the charter or by-laws of the
Company, CTB or any of their subsidiaries, (ii) any agreement,
indenture or other instrument, known to such counsel, to
18
19
which the Company, CTB or any of their subsidiaries, or any Selling
Stockholder is a party or by which the Company, CTB or any of their
subsidiaries, or any Selling Stockholder or their respective properties
are bound except as would not have a Material Adverse Effect, or (iii)
violate or conflict with any laws, administrative regulations or
rulings or court decrees applicable to the Company, CTB or any of their
subsidiaries, or any Selling Stockholder or their respective
properties, except as would not have a Material Adverse Effect;
(xiii) such counsel does not know of any legal or governmental
proceeding pending or threatened to which the Company or any of its
Significant Subsidiaries is a party or to which any of their respective
property is subject which is required to be described in the
Registration Statement or the Prospectus and is not so described, or of
any contract or other document which is required to be described in the
Registration Statement or the Prospectus or is required to be filed as
an exhibit to the Registration Statement which is not described or
filed as required;
(xiv) except as disclosed in the Prospectus, to such counsel's
knowledge, no holder of any security of the Company has any right to
require registration of shares of Common Stock or any other security of
the Company;
(xv) Such counsel has no reason to believe that the
Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus and any
supplement or amendment thereto contains any untrue statement of a
material fact or omits to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading, except that in each case such counsel
need express no belief with respect to the financial statements or
other financial or statistical data contained in the Registration
Statement or the Prospectus;
(xvi) each Selling Stockholder has full legal right, power and
authority, and any approval required by law (other than any approval
imposed by the applicable state securities and Blue Sky laws) to sell,
assign, transfer and deliver the Shares to be sold by it in the manner
provided in this Agreement;
(xvii) each Selling Stockholder has good and clear title to
the certificates for the Shares to be sold by him and upon delivery
thereof, pursuant hereto and payment therefor, good and clear title
will pass to the Underwriters, severally, free of all restrictions on
transfer, liens, encumbrances, security interests and claims
whatsoever; and
(xviii) the power of attorney signed by such Selling
Stockholder appointing Xxxxx X. Xxxxxx and Xxx X. Xxxxxxxxxxx, or
either one of them, as its attorney-in-fact to the extent set forth
therein with regard to the transactions contemplated hereby and by the
Registration Statement has been duly authorized, executed and delivered
by or on behalf of such Selling Stockholder and is a valid and binding
instrument of such Selling Stockholder enforceable
19
20
in accordance with its terms, and, pursuant to such power of attorney,
each of the Selling Stockholders has authorized Xxxxx X. Xxxxxx and Xxx
X. Xxxxxxxxxxx, or either one of them, to execute and deliver on his
behalf this Agreement and any other document necessary or desirable in
connection with transactions contemplated hereby and to deliver the
Shares to be sold by such Selling Stockholder pursuant to this
Agreement.
In giving such opinion with respect to the matters covered by
clause (xv) such counsel may state that his opinion and belief are based upon
his participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check or verification
except as specified.
The opinion of Xxxxxxx X. Xxxxxxx, Esq. described in paragraph
(e) above shall be rendered to you at the request of the Company, CTB and the
Selling Stockholders and shall so state therein.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Xxxxxxx Xxxxxxxx & Xxxxxxxx, special counsel for the Company and American
Securities Partners, L.P. and ASP/CTB, L.P., each a Delaware limited
partnership, to the effect that:
(i) the Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Delaware and has full corporate power and authority to conduct
its business as described in the Registration Statement and Prospectus;
(ii) all outstanding shares of the Company's Common Stock,
including the Shares, have been duly authorized, and all outstanding
shares of the Company's Common Stock have been and, upon payment and
delivery in accordance with this Agreement, the Shares will be, validly
issued, fully paid and nonassessable;
(iii) each of American Securities Partners, L.P. and ASP/CTB,
L.P. (each an "American Securities Partnership") is the sole registered
owner of the Shares to be sold by such American Securities Partnership
and each American Securities Partnership has full partnership power,
right and authority to sell such Shares and, upon payment for and
delivery of such Shares in accordance with this Agreement, the
Underwriters will acquire all of the rights of each American Securities
Partnership in the Shares to be sold by such American Securities
Partnership and will also acquire their interest in such Shares free of
any adverse claim (within the meaning of the Uniform Commercial Code as
in effect in the State of New York);
(iv) the statements made in the Prospectus under the caption
"Description of Capital Stock," insofar as they purport to constitute
summaries of the terms of the Company's capital
20
21
stock (including the Shares), constitute accurate summaries of the
terms of such capital stock in all material respects;
(v) this Agreement has been duly authorized, executed and
delivered by the Company and on behalf of each American Securities
Partnership;
(vi) the power of attorney signed by each American Securities
Partnership appointing Xxxxx X. Xxxxxx and Xxx X. Xxxxxxxxxxx, or
either one of them, as its attorney-in-fact to the extent set forth
therein with regard to the transactions contemplated hereby and by the
Registration Statement has been duly authorized, executed and delivered
by or on behalf of each American Securities Partnership and is a valid
and binding instrument of each American Securities Partnership
enforceable in accordance with its terms and pursuant to such power of
attorney, each American Securities Partnership has authorized Xxxxx X.
Xxxxxx and Xxx X. Xxxxxxxxxxx, or either one of them, to execute and
deliver on his behalf this Agreement and any other document necessary
or desirable in connection with transactions contemplated hereby and to
deliver the Shares to be sold by each American Securities Partnership
pursuant to this Agreement;
(vii) no consent, approval, authorization, order, registration
or qualification of or with any federal or New York governmental agency
or body or any Delaware governmental agency or body acting pursuant to
the Delaware General Corporation Law or, to our knowledge, any federal
or New York court or any Delaware court acting pursuant to the Delaware
General Corporation Law is required for the issue and sale of the
Shares by the Company and the compliance by the Company with all of the
provisions of this Agreement, except for the registration under the Act
and the Exchange Act, of the Shares, and such consents, approvals,
authorizations, orders, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters;
(viii) the issue and sale of the Shares by the Company and the
compliance by the Company with all of the provisions of this Agreement
will not conflict with or constitute a breach of any of the terms or
provisions of, or result in a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument
identified on the annexed schedule furnished to such counsel by the
Company (which the Company shall have certified constitutes a list of
all material agreements except as would not have a Material Adverse
Effect), nor will such action violate the Certificate of Incorporation
or By-Laws of the Company or any federal or New York statute or the
Delaware General Corporation Law or any rule or regulation that has
been issued pursuant to any federal or New York statute or the Delaware
General Corporation Law or any order known to us issued pursuant to any
federal or New York statute or the Delaware General Corporation Law by
any governmental agency or body or court having jurisdiction over the
Company or any of its subsidiaries or any of their properties;
21
22
(ix) the sale of the Shares by the American Securities
Partnerships and the compliance by the American Securities Partnerships
with all of the provisions of this Agreement will not conflict with or
constitute a breach of any of the terms or provisions of, or result in
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument identified on the annexed schedule
furnished to such counsel by the American Securities Partnerships
(which the American Securities Partnerships shall have certified
constitutes a list of all material agreements except as would not have
a Material Adverse Effect), nor will such action violate the
partnership agreements of the American Securities Partnerships or any
federal or New York statute or the Delaware Uniform Limited Partnership
Act or any rule or regulation that has been issued pursuant to any
federal or New York statute or the Delaware Uniform Limited Partnership
Act or any order known to us issued pursuant to any federal or New York
statute or the Delaware Uniform Limited Partnership Act by any
governmental agency or body or court having jurisdiction over the
American Securities Partnerships or any of their properties;
(x) no consent, approval, authorization, order, registration
or qualification of or with any federal or New York governmental agency
or body or any Delaware governmental agency or body acting pursuant to
the Delaware Uniform Limited Partnership Act or, to our knowledge, any
federal or New York court or any Delaware court acting pursuant to the
Delaware Uniform Limited Partnership Act is required for the sale of
the Shares by the American Securities Partnerships and the compliance
by the American Securities Partnerships with all of the provisions of
this Agreement, except for the registration under the Act and the
Exchange Act, of the Shares, and such consents, approvals,
authorizations, orders, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters;
(xi) the Registration Statement has become effective under the
Act and the Prospectus was filed on ___________, 1997 pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act
and, to our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued or proceeding for that
purpose has been instituted or threatened by the Commission;
(xii) there are no preemptive rights under federal law or
under the Delaware General Corporation Law to subscribe for or purchase
shares of the Company's capital stock. There are no preemptive or other
rights to subscribe for or to purchase any shares of the Company's
capital stock pursuant to the Company's charter or by-laws or any
agreement or other instrument identified on a schedule furnished to
such counsel by the Company (which the Company shall have certified
constitutes a list of all material agreements except as would not have
a Material Adverse Effect) and which is attached to such counsel's
opinion;
(xiii) the Company is not an "investment company" within the
meaning of and subject to regulation under the Investment Company Act
of 1940, as amended; and
22
23
(xiv) the Registration Statement and the Prospectus and any
supplement or amendment thereto, comply as to form in all material
respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder, except that in each case such
counsel need express no opinion with respect to the financial
statements or other financial or statistical data contained in the
Registration Statement or the Prospectus, and such counsel has no
reason to believe that the Registration Statement, as of its effective
date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading or that the
Prospectus and any supplement or amendment thereto contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that
in each case such counsel need express no belief with respect to the
financial statements or other financial or statistical data contained
in the Registration Statement or the Prospectus.
In giving such opinion with respect to the matters covered by
clause (xiv) such counsel may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check or verification
except as specified.
The opinion of Xxxxxxx Xxxxxxxx & Xxxxxxxx described in
paragraph (f) above shall be rendered to you at the request of the Company and
American Securities Partners, L.P. and ASP/CTB, L.P. and shall so state therein.
(g) You shall have received on the Closing Date an opinion,
dated the Closing Date, of Xxxx, Scholer, Fierman, Xxxx & Handler, LLP, counsel
for the Underwriters, as to the matters referred to in clauses (v), (vi) (but
only with respect to the Company), (ix), (x) (but only with respect to the
statements under the caption "Description of Capital Stock" and "Underwriting")
and (xv) of the foregoing paragraph (e). In giving such opinion with respect to
the matters covered by clause (xv) such counsel may state that their opinion and
belief are based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and review
and discussion of the contents thereof, but are without independent check or
verification except as specified.
(h) You shall have received letters on and as of the Closing
Date, in form and substance satisfactory to you, from Deloitte & Touche LLP,
Price Waterhouse LLP, KPMG Peat Marwick LLP and Coopers & Xxxxxxx N.V.,
independent public accountants, with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus for each of the Company, the Company's predecessor, Xxxxxx and
Fancom, respectively, substantially in the form and substance of the letters
delivered to you by Deloitte & Touche LLP, Price Waterhouse LLP, KPMG Peat
Marwick LLP and Coopers & Xxxxxxx N.V. on the date of this Agreement.
23
24
(i) The Sellers shall have delivered to you the agreements
specified in Section 2 hereof.
(j) The Acquisitions shall have been consummated prior to the
issuance and sale of the Firm Shares hereunder substantially on the terms set
forth in the Prospectus and the Company or its subsidiaries shall own all or
substantially all of the assets of the Grain Division and the entire equity
interest in Fancom.
(k) The Exchange and the Redemption shall have been
consummated prior to or contemporaneously with the issuance and sale of the Firm
Shares hereunder.
(l) The New Credit Agreement (as defined in the Prospectus)
shall have been entered into and all amounts outstanding under the Existing
Credit Agreement (as defined in the Prospectus) shall have been repaid.
(m) The Company, CTB and the Selling Stockholders shall not
have failed at or prior to the Closing Date to perform or comply with any of the
agreements herein contained and required to be performed or complied with by
them at or prior to the Closing Date.
The several obligations of the Underwriters to purchase any
Additional Shares hereunder are subject to the delivery to you on the applicable
Option Closing Date of such documents as you may reasonably request with respect
to the good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
10. Effective Date of Agreement and Termination. This
Agreement shall become effective upon the later of (i) execution of this
Agreement and (ii) when notification of the effectiveness of the Registration
Statement has been released by the Commission.
This Agreement may be terminated at any time prior to the
Closing Date by you by written notice to the Sellers if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or
development involving a prospective material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries, taken as a whole,
or the earnings, affairs, or business prospects of the Company or any of its
subsidiaries, taken as a whole, whether or not arising in the ordinary course of
business, which would, in your judgment, make it impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus, (ii) any
outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic conditions or in the financial markets
of the United States or elsewhere that, in your judgment, is material and
adverse and would, in your judgment, make it impracticable to market the Shares
on the terms and in the manner contemplated in the Prospectus, (iii) the
suspension or material limitation of trading in securities on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market or
limitation on prices for securities on any such exchange or Nasdaq National
Market, (iv) the enactment, publication, decree or other promulgation of any
federal or state
24
25
statute, regulation, rule or order of any court or other governmental authority
which in your opinion materially and adversely affects, or will materially and
adversely affect, the business or operations of the Company or any of its
subsidiaries, (v) the declaration of a banking moratorium by either federal or
New York State authorities or (vi) the taking of any action by any federal,
state or local government or agency in respect of its monetary or fiscal affairs
which in your opinion has a material adverse effect on the financial markets in
the United States.
If on the Closing Date or on an Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase the Firm Shares or Additional Shares, as the case may be, which it or
they have agreed to purchase hereunder on such date and the aggregate number of
Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused to
purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I bears to the total number of Firm
Shares which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Firm Shares
or Additional Shares, as the case may be, which any Underwriter has agreed to
purchase pursuant to Section 2 hereof be increased pursuant to this Section 10
by an amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter. If
on the Closing Date or on an Option Closing Date, as the case may be, any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares or
Additional Shares, as the case may be, and the aggregate number of Firm Shares
or Additional Shares, as the case may be, with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares to be purchased
on such date by all Underwriters and arrangements satisfactory to you and the
Company for purchase of such Shares are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter and the Company. In any such case which does not
result in termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Date or the applicable Option Closing Date, as
the case may be, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of any such Underwriter under this Agreement.
11. Agreements of the Selling Stockholders. Each Selling
Stockholder severally agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes, if any,
with respect to the Shares to be sold by such Selling Stockholder; and
25
26
(b) To take all reasonable actions in cooperation with the
Company and the underwriters to cause the Registration Statement to become
effective at the earliest possible time, to do and perform all things to be doe
and performed under this Agreement prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Shares pursuant to this Agreement.
12. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (a) if to the Company or CTB, to
Chore-Time Xxxxx, Inc., Xxxxx Xxxx 00 Xxxxx, X.X. Xxx 0000, Xxxxxxx, Xx
00000-0000, (b) if to the Selling Stockholders, to [Name of Attorney-in-fact c/o
address of Attorney-in-fact], and (c) if to any Underwriter or to you, to you
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department, or in any case to such
other address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company or CTB and their
respective officers and directors, the Selling Stockholders and of the several
Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Shares, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter or by or on behalf of
the Company or CTB and their respective officers and directors, the Selling
Stockholders, or any controlling person of any of them, (ii) acceptance of the
Shares and payment for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters
because of any failure or refusal on the part of the Company, CTB or the Selling
Stockholders to comply with the terms or to fulfill any of the conditions of
this Agreement, the Sellers agree to reimburse the several Underwriters for all
out-of-pocket expenses (including the fees and disbursements of counsel)
reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, CTB, the
Selling Stockholders, the Underwriters, any controlling persons referred to
herein and their respective successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include a purchaser of any of the Shares from any of the several
Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed entirely in such State, without reference to the rules covering the
conflicts of laws.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
26
27
Please confirm that the foregoing correctly sets forth the
agreement between the Company, CTB, the Selling Stockholders and the several
Underwriters.
Very truly yours,
CTB INTERNATIONAL CORP.
By:
----------------------------------------
Title:
CTB, INC.
By:
----------------------------------------
Title:
THE SELLING STOCKHOLDERS NAMED
IN SCHEDULE II HERETO
By:
----------------------------------------
Attorney-in-fact
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXX X. XXXX & COMPANY
CHASE SECURITIES INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By: XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:
-------------------------------
28
SCHEDULE I
Number of
Firm Shares
Underwriters to be Purchased
------------ ---------------
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxxx X. Xxxx & Company
Chase Securities Inc.
29
SCHEDULE II
Selling Stockholders
Number of
Firm Shares
Name Being Sold
---- -----------
American Securities Partners, L.P.
ASP/CTB, L.P.
J. Xxxxxxxxxxx Xxxxxxx
Xxxxx Xxxxxxx
30
ANNEX I
Required Stockholder Lock-ups
American Securities Partners, L.P.
ASP/CTB, L.P.
American Securities Partners GP (Management) Corp.
ASP/CTB G.P. Corp.
J. Xxxxxxxxxxx Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxx X. Xxxxxxxxxxx
Xxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxx X. Xxxxx, Xx.
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx Xxxxxxxxxx
Xxxxx Xxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxx Xxx Xxxxxx
Xxxxx Xxxxx
Jan X.X. Xxxxxxx
H.H.W. Gootzen
Xxxxxxx X. Xxx Xxxxxxxx