DT CAPITAL TRUST
7.16% Convertible Preferred Securities
(Liquidation Preference $50 per
Convertible Preferred Security)
Guaranteed by, and Convertible into
Common Stock of, DT Industries, Inc.
REGISTRATION RIGHTS AGREEMENT
June 12, 1997
To the Purchasers Whose Names
Appear in the Acceptance Form
at the End Hereof
Dear Sirs:
DT Capital Trust, a statutory business trust formed under the laws of the
State of Delaware (the "Trust") by DT Industries, Inc., a Delaware corporation
(the "Guarantor"), proposes to issue and sell to each of you, (each a
"Purchaser", and collectively, the "Purchasers"), upon the terms set forth in a
purchase agreement dated June 12, 1997 (the "Purchase Agreement"), among the
Purchasers, the Guarantor and the Trust up to 1,400,000 of its 7.16% Convertible
Preferred Securities (liquidation preference $50 per Convertible Preferred
Security) (the "Preferred Securities"). As an inducement to you to enter into
the Purchase Agreement and in satisfaction of a condition to your obligations
thereunder, the Trust and the Guarantor agree with you, (i) for your benefit and
(ii) for the benefit of the holders from time to time of the Preferred
Securities, the 7.16% Convertible Junior Subordinated Deferrable Interest
Debentures Due 2012 (the "Debentures") and the Common Stock, par value $.01 per
share (the "Common Stock"), of the Guarantor issuable upon conversion of the
Preferred Securities or the Debentures (collectively, together with the
Guarantee of the Guarantor of the Preferred Securities, the "Securities"),
including the
Purchasers (each of the foregoing a "Holder" and together the
"Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in or pursuant to the Purchase
Agreement or, if not defined therein, in the Confidential Offering Memorandum
dated June 12, 1997, in respect of the Preferred Securities or, if not defined
therein, in the Amended and Restated Declaration of Trust dated as of June 1,
1997 (the "Declaration") relating to the Trust. As used in this Agreement, the
following capitalized defined terms shall have the following meanings:
"Act" or "Securities Act" means the Securities Act of 1933, as amended.
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering, if any,
as set forth in Section 6 hereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
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supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
"Shelf Registration Period" has the meaning set forth in Section 2(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement of
the Trust and the Guarantor pursuant to the provisions of Section 2 hereof filed
with the Commission which covers some or all of the Securities, as applicable,
on an appropriate form under Rule 415 under the Act, or any similar rule that
may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Underwriter" means any underwriter of Securities in connection with an
offering thereof under a Shelf Registration Statement.
2. Shelf Registration. (a) The Trust and the Guarantor shall as promptly
as practicable prepare and, not later than August 15, 1997, shall file with the
Commission and thereafter shall each use its best efforts to cause to be
declared effective under the Act as soon as practicable, but in no event later
than December 15, 1997, a Shelf Registration Statement relating to the offer and
sale of the Securities by the Holders from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that no Holder shall be entitled to
have the Securities held by it covered by such Shelf Registration unless such
Holder is in compliance with Section 3(m) hereof.
(b) The Trust and the Guarantor shall each use its best efforts (i) to
keep the Shelf Registration Statement continuously effective in order to permit
the Prospectus forming part thereof to be usable by Holders for so long as shall
be required by Rule 144(k) under the Securities Act or any successor
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rule or regulation thereto after the date the Shelf Registration Statement is
declared effective or such shorter period that will terminate upon the earlier
of the following: (A) when all the Preferred Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement, (B) when all Debentures issued to Holders in respect of Preferred
Securities that had not been sold pursuant to the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement, (C) when all shares
of Common Stock issued upon conversion of any such Preferred Securities or any
such Debentures that had not been sold pursuant to the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement and (D)
when, in the written opinion of counsel to the Trust and the Guarantor, all
outstanding Securities may be sold without registration under the Act (in any
such case, such period being called the "Shelf Registration Period") and (ii)
after the effectiveness of the Shelf Registration Statement, promptly upon the
request of any Holder to take any action reasonably necessary to register the
sale of any Securities of such Holder and to identify such Holder as a selling
securityholder. The Trust and the Guarantor shall be deemed not to have used
their best efforts to keep the Shelf Registration Statement effective during the
requisite period if either the Trust or the Guarantor voluntarily takes any
action that would result in Holders of Securities covered thereby not being able
to offer and sell any such Securities during that period, unless (i) such action
is required by applicable law or (ii) upon the occurrence of any event
contemplated by paragraph 3(c)(2)(iii) below, such action is taken by the Trust
or the Guarantor in good faith and for valid business reasons and the Trust and
the Guarantor thereafter promptly comply with the requirements of paragraph 3(i)
below.
3. Registration Procedures. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Trust and the Guarantor shall furnish to the Holders, prior to the
filing thereof with the Commission, a copy of any Shelf Registration Statement,
and each amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein.
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(b) The Trust and the Guarantor shall take such action as may be necessary
so that (i) any Shelf Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement thereto (and
each report or other document incorporated therein by reference in each case)
complies in all material respects with the Securities Act and the Exchange Act
and the respective rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes effective, 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 not misleading
and (iii) any Prospectus forming part of any Shelf Registration Statement, and
any amendment or supplement to such Prospectus, does not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements, in the light of the circumstances under which they were
made, not misleading.
(c) (1) The Guarantor shall advise the Purchasers and, in the case of
clause (i), the Holders and, if requested by the Purchasers or any such Holder,
confirm such advice in writing:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the
Prospectus included therein or for additional information.
(2) The Guarantor shall advise the Purchasers and the Holders and,
if requested by the Purchasers or any such Holder, confirm such advice in
writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
or the
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initiation of any proceedings for that purpose;
(ii) of the receipt by the Trust or the Guarantor of any
notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation of any proceeding for such
purpose; and
(iii) of the happening of any event that requires the
making of any changes in the Shelf Registration Statement or the
Prospectus so that, as of such date, the Registration Statement
and the Prospectus do not contain an untrue statement of a
material fact and do not omit to state a material fact required
to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading (which advice shall
be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made).
(d) The Guarantor shall use its best efforts to prevent the issuance, and
if issued to obtain the withdrawal, of any order suspending the effectiveness of
any Shelf Registration Statement at the earliest possible time.
(e) The Trust and the Guarantor shall, upon written request of a Holder,
furnish to each Holder of Securities included within the coverage of any Shelf
Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto (including any
reports or other documents incorporated therein by reference), including
financial statements and schedules, and, if the Holder so requests in writing,
all exhibits (including those incorporated by reference).
(f) The Trust and the Guarantor shall, during the Shelf Registration
Period, deliver to each Holder of Securities
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included within the coverage of any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including each preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; and each of the Trust and the
Guarantor consents to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Securities in connection with the
offering and sale of the Securities covered by the Prospectus or any amendment
or supplement thereto during the Shelf Registration Period.
(g) Prior to any offering of Securities pursuant to any Shelf Registration
Statement, the Trust and the Guarantor shall register or qualify or cooperate
with the Holders of Securities included therein and their respective counsel in
connection with the registration or qualification of such Securities for offer
and sale under the securities or blue sky laws of such jurisdictions as any such
Holders reasonably request in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such jurisdictions of the
Securities covered by such Shelf Registration Statement; provided, however, that
neither the Trust nor the Guarantor will be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process or to taxation in
any such jurisdiction where it is not then so subject.
(h) Unless any Securities shall be in book-entry only form, the Trust and
the Guarantor shall cooperate with the Holders of Securities to facilitate the
timely preparation and delivery of certificates representing Securities to be
sold pursuant to any Shelf Registration Statement free of any restrictive
legends and in such permitted denominations and registered in such names as
Holders may request in connection with the sale of Securities pursuant to such
Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by paragraph
3(c)(2)(iii) above, the Trust and the Guarantor shall promptly prepare a
post-effective amendment to any Shelf Registration Statement or an amendment or
supplement to the related Prospectus or file any other required document so
that,
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as thereafter delivered to Purchasers of the Securities included therein, the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading. If the Trust or
the Guarantor notifies the Holders of the occurrence of any event contemplated
by paragraph 3(c)(2)(iii) above, the Holders shall suspend the use of the
Prospectus until the requisite changes to the Prospectus have been made.
(j) Not later than the effective date of any Shelf Registration Statement
hereunder, the Trust and the Guarantor shall provide a CUSIP number for the
Preferred Securities and the Debentures in the event of and at the time of any
distribution thereof to Holders, registered under such Shelf Registration
Statement, and provide the applicable trustee with certificates for such
Securities, in a form eligible for deposit with The Depository Trust Company.
(k) The Trust and the Guarantor shall use their best efforts to comply
with all applicable rules and regulations of the Commission and shall make
generally available to their security holders or otherwise in accordance with
Section 11(a) of the Securities Act as soon as practicable after the effective
date of the applicable Shelf Registration Statement an earning statement
satisfying the provisions of Section 11(a) of the Securities Act.
(l) The Trust and the Guarantor shall cause the Indenture, the Declaration
and the Guarantee to be qualified under the Trust Indenture Act in a timely
manner.
(m) The Trust and the Guarantor may require each Holder of Securities to
be sold pursuant to any Shelf Registration Statement to furnish to the Trust and
the Guarantor such information regarding the Holder and the distribution of such
Securities as the Trust and the Guarantor may from time to time reasonably
require for inclusion in such Shelf Registration Statement and the Guarantor and
the Trust may exclude from such registration the Securities of any Holder that
fails to furnish such information within a reasonable time after receiving such
request.
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(n) The Trust and the Guarantor shall, if requested, promptly incorporate
in a Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters reasonably agree should
be included therein and to which the Trust and the Guarantor do not reasonably
object and shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after they are notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment.
(o) The Trust and the Guarantor shall enter into such customary agreements
(including underwriting agreements in customary form) to take all other
appropriate actions in order to expedite or facilitate the registration or the
disposition of the Securities, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification provisions
and procedures substantially identical to those set forth in Section 5 (or such
other provisions and procedures acceptable to the Managing Underwriters, if any)
with respect to all parties to be indemnified pursuant to Section 5.
(p) The Trust and the Guarantor shall (i) make reasonably available for
inspection by the Holders of Securities to be registered thereunder, any
underwriter participating in any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant or other agent retained by such Holders
or any such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Trust and the Guarantor and its
subsidiaries; (ii) cause the Guarantor's officers, directors and employees and
the Issuer Trustees to supply all relevant information reasonably requested by
such Holders or any such underwriter, attorney, accountant or agent in
connection with any such Shelf Registration Statement as is customary for
similar due diligence examinations; provided, however, that any information that
is designated in writing by the Trust and the Guarantor, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by such Holders or any such underwriter, attorney, accountant or
agent, unless such disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the public generally
or through a third party without an accompanying obligation of confidentiality;
and
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provided further that the foregoing inspection and information gathering shall,
to the greatest extent possible, be coordinated on behalf of the Holders and the
other parties entitled thereto by one counsel designated by and on behalf of
such Holders and other parties; (iii) make such representations and warranties
to the Holders of Securities registered thereunder and the underwriters, if any,
in form, substance and scope as are customarily made by the Guarantor to
underwriters in primary underwritten offerings and covering matters including,
but not limited to, those set forth in the Purchase Agreement; (iv) obtain
opinions of counsel to the Trust and the Guarantor and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed to each selling
Holder and the underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such Holders and underwriters (it being agreed
that the matters to be covered by such opinion shall include, without
limitation, as of the date of the opinion and as of the effective date of the
Shelf Registration Statement or most recent post-effective amendment thereto, as
the case may be, the absence from such Shelf Registration Statement and the
prospectus included therein, as then amended or supplemented, including the
documents incorporated by reference therein, of an untrue statement of a
material fact or the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading; (v)
obtain "cold comfort" letters and updates thereof from the independent certified
public accountants of the Guarantor (and, if necessary, any other independent
certified public accountants of any subsidiary of the Guarantor or of any
business acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Shelf Registration Statement),
addressed to each such Holder of Securities registered thereunder and the
underwriters, if any, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with primary
underwritten offerings; and (vi) deliver such documents and certificates as may
be reasonably requested by any such Holders and the Managing Underwriters,
if any, including those to evidence compliance with Section 3(i) and
with any customary conditions contained in the underwriting agreement or
other agreement into by the Trust and the Guarantor. The
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foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this Section
3(p) shall be performed at each closing under any underwritten offering to the
extent required thereunder.
(q) The Trust and the Guarantor will use its best efforts to cause the
Common Stock relating to such Shelf Registration Statement to be listed on each
securities exchange, if any, on which any shares of Common Stock are then
listed.
(r) The Trust and the Guarantor shall, in the event that any broker-dealer
registered under the Exchange Act shall underwrite any Securities or participate
as a member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of Rule 2720 of the Conduct Rules ("Rule
2720") of the National Association of Securities Dealers, Inc. ("NASD")),
whether as a Holder of such Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise, assist such
broker or dealer in complying with the requirements of Rule 2720, including,
without limitation, by (A) if Rule 2720 shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate in the
preparation of the Shelf Registration Statement relating to such Securities, to
exercise usual standards of due diligence in respect thereto, (B) indemnifying
any such qualified independent underwriter to the extent of the indemnification
of underwriters provided in Section 5 hereof and (C) providing such information
to such broker-dealer as may be required in order for such broker-dealer to
comply with the requirements of the Conduct Rules of the NASD.
(s) The Trust and the Guarantor shall use their best efforts to take all
other steps necessary to effect the registration, offering and sale of the
Securities covered by the Shelf Registration Statement contemplated hereby.
4. Registration Expenses. Except as otherwise provided in Section 6, the
Guarantor shall bear all fees and expenses incurred in connection with
the performance of its obligations under Sections 2 and 3 hereof and
shall bear or reimburse the Holders for the reasonable fees and
disbursements of one firm of counsel designated by the Guarantor and reasonably
acceptable to the Holders of a majority of the Securities covered
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by the Shelf Registration Statement to act as counsel therefor in connection
therewith.
5. Indemnification and Contribution. (a) In connection with any Shelf
Registration Statement, the Trust and the Guarantor, jointly and severally,
agree to indemnify and hold harmless the Purchasers, the officers and directors
of the Purchasers, each Holder of Preferred Securities covered thereby
(including the Purchasers) and each person who controls the Purchasers or any
such Holder within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Shelf
Registration Statement as originally filed or in any amendment thereof, or in
any preliminary prospectus or Prospectus, or in any amendment thereof 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, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Guarantor and the Trust will not be liable in any case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Guarantor by or on behalf of the Purchasers or any such Holder
specifically for inclusion therein and (ii) the foregoing indemnity with respect
to any untrue statement or alleged untrue statement or omission or alleged
omission made in any preliminary prospectus relating to a Shelf Registration
Statement shall not inure to the benefit of any Holder (or any person
controlling such Holder) from whom the person asserting any such loss, claim,
damage or liability purchases any of the Securities that are the subject thereof
if such person did not receive a copy of the final prospectus (or the final
prospectus as supplemented) at or prior
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to the written confirmation of the sale of such Securities to such person and
the untrue statement or alleged untrue statement or omission or alleged omission
contained in the preliminary prospectus was corrected in the final prospectus
(or the final prospectus as supplemented). This indemnity agreement will be in
addition to any liability which the Guarantor or the Trust may otherwise have.
The Trust and the Guarantor, jointly and severally, also agree to indemnify
or contribute to Losses (as defined below) of, as provided in Section 5(d), any
underwriters of Securities registered under the Shelf Registration Statement,
their officers, directors, employees and agents and each person who controls
such underwriters on substantially the same basis as that of the indemnification
of the Purchasers and the selling Holders provided in this Section 5(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 3(o) and Section 6 hereof.
(b) Each Holder of Securities covered by a Shelf Registration Statement
(including the Purchasers) severally agrees to indemnify and hold harmless (i)
the Trust and the Guarantor, (ii) each of the directors of the Guarantor, (iii)
each of its officers who signs such Shelf Registration Statement and (iv) each
person who controls the Trust or the Guarantor within the meaning of either the
Securities Act or the Exchange Act to the same extent as the foregoing indemnity
from the Trust and the Guarantor, but only with reference to written information
relating to such Holder furnished to the Guarantor by or on behalf of such
Holder specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any such Holder may otherwise have. Notwithstanding the foregoing, the liability
of each Holder under this subsection (b) shall be limited to the proportion of
any such loss, claim, damage, liability or expense which is equal to the
proportion that the gross proceeds received by such Holder from the sale of
Securities covered by the Shelf Registration Statement bears to the total gross
proceeds received by all Holders from the sale of Securities covered by the
Shelf Registration Statement, but in no event to exceed the amount of such gross
proceeds received by such Holder from the sale of Securities covered by such
Shelf Registration Statement; provided, however, that the limitation
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stated in this sentence will not apply to the extent the liability of a Holder
is specifically determined by the applicable adjudicating body not to be
predicated on such party's status as a selling securityholder and to be
predicated instead on (x) such Holder being a director, officer or control
person of the Guarantor or the Trust or (y) the willful misconduct of such
party. A Holder will not be required to enter into any agreement or undertaking
in connection with any registration under this Section 5 providing for any
indemnification or contribution to the Guarantor or the Trust on the part of
such Holder greater than the Holder's obligations under this Section 5(b).
(c) Promptly after receipt by an indemnified party under this Section 5 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve the indemnifying
party from any liability it may have to any indemnified party otherwise than
under paragraph (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of such indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section 5 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
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(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 5 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several obligation
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the sale of Securities covered
by the Shelf Registration Statement which resulted in such Losses; provided,
however, that in no case shall the Purchasers or any subsequent Holder of any
Security be responsible, in the aggregate, for any amount in excess of the
amount by which the net proceeds received by such Holders from the sale of the
Securities pursuant to the Registration Statement exceeds the amount of damages
which such Holders have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, sale of Securities covered by
the Shelf Registration Statement which resulted in such Losses as well
as any other relevant equitable considerations. Relative fault shall be
determined by reference to whether any alleged untrue statement or
omission relates to information provided by the indemnifying party, on
the one hand, or by the indemnified party, on the other hand. The
parties agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation
which does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), 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. For purposes of
this Section 5, each person who controls a Holder within the meaning of either
the Securities Act or the Exchange Act shall have the same rights
15
to contribution as such Holder, and each person who controls the Guarantor or
the Trust within the meaning of either the Securities Act or the Exchange Act,
each officer of the Guarantor who shall have signed the Shelf Registration
Statement and each director of the Guarantor shall have the same rights to
contribution as the Guarantor, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 5 will remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder or the
Guarantor or the Trust or any of the officers, directors, employees, agents or
controlling persons referred to in Section 5 hereof, and will survive the sale
by a Holder of Securities covered by the Shelf Registration Statement.
6. Underwritten Offering. The Holders of Securities covered by the Shelf
Registration Statement who desire to do so may sell such Securities in an
underwritten offering. In any such underwritten offering, the investment banker
or bankers and manager or managers that will administer the offering will be
selected by, and the underwriting arrangements with respect thereto will be
approved by, the Holders of a majority of the Securities to be included in such
offering; provided, however, that (i) such investment bankers and managers and
underwriting arrangements must be reasonably satisfactory to the Guarantor and
the Trust and (ii) the Guarantor shall not be obligated to arrange for more than
one underwritten offering during the Shelf Registration Period. No Holder may
participate in any underwritten offering contemplated hereby unless such Holder
(a) agrees to sell such Holder's Securities in accordance with any approved
underwriting arrangements, (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such approved
underwriting arrangements and (c) at least 33 1/3% of the outstanding Securities
are included in such underwritten offering (or at least 20% of the outstanding
Securities if at the time time the Purchasers and their Affiliates hold, in the
aggregate, less than 50% of the Securities purchased by the Purchasers pursuant
to the Purchase Agreement). The Holders participating in any underwritten
offering shall be responsible for any expenses customarily borne by selling
securityholders, including underwriting discounts and commissions and fees and
expenses of counsel to the selling securityholders and shall reimburse the Trust
and the Guarantor for the fees and disbursements of their counsel, their
independent public accountants and any printing expenses incurred in connection
with
16
such underwritten offering. Notwithstanding the foregoing or the provisions of
Section 3(n) hereof, upon receipt of a request from the Managing Underwriter or
a representative of Holders of a majority of the Securities outstanding to
prepare and file an amendment or supplement to the Shelf Registration Statement
and Prospectus in connection with an underwritten offering, the Guarantor may
delay the filing of any such amendment or supplement for up to 90 days if the
Guarantor in good faith has a valid business reason for such delay.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Trust and the Guarantor have not, as
of the date hereof, entered into, nor shall they on or after the date hereof,
enter into, any agreement with respect to their securities or otherwise that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Trust and the Guarantor have obtained the written
consent of the Purchasers.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by
such Holder to the Guarantor in accordance with the provisions
of this Section 7(c);
(2) if to the Purchasers, initially at the applicable
address for each Purchaser set forth in the Purchase Agreement;
and
(3) if to the Trust or the Guarantor, initially at its
address set forth in the Purchase Agreement.
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All such notices and communications shall be deemed to have been duly given when
received.
The Purchasers or the Trust and the Guarantor by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties and the
Holders, including, without the need for an express assignment or any consent by
the Trust or the Guarantor thereto, subsequent Holders of Securities. The Trust
and the Guarantor hereby agree to extend the benefits of this Agreement to any
Holder of Securities and any such Holder may specifically enforce the provisions
of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State.
(h) Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
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Please confirm that the foregoing correctly sets forth the agreement
between the Guarantor and you.
Very truly yours,
DT CAPITAL TRUST, by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, solely in his
capacity as trustee and not in his
individual capacity,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Regular Trustee
DT INDUSTRIES, INC.,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President-Finance
19
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
The Northwestern Mutual Life Insurance Company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
The Travelers Insurance Company
(I/N/O/ TRAL & Co.)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Second Vice President
The Travelers Indemnity Company
(I/N/O/ TRAL & Co.)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Second Vice President
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
The foregoing is executed on behalf of the Trust, organized under a Declaration
of Trust, dated April 7, 1988, as amended from time to time. The obligations of
such Trust are not personally binding upon, nor shall resort be had to the
property of, any of the Trustees, shareholders, officers, employees or agents of
such Trust, but the Trust's property only shall be bound.
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MASSMUTUAL PARTICIPATION INVESTORS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Investment Officer
The foregoing is executed on behalf of the Trust, organized under a Declaration
of Trust, dated September 13, 1985, as amended from time to time. The
obligations of such Trust are not personally binding upon, nor shall resort be
had to the property of, any of the Trustees, shareholders, officers, employees
or agents of such Trust, but the Trust's property only shall be bound.
MASSMUTUAL CORPORATE INVESTORS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Investment Officer
MASSMUTUAL CORPORATE VALUE PARTNERS LIMITED,
By Massachusetts Mutual Life Insurance Company, its
Investment Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
MASSMUTUAL HIGH YIELD PARTNERS LLC,
By HYP Management, Inc., as Managing Member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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NOTE
The following page contains a list of Exhibits and Schedules which have
been intentionally omitted by the Registrant.
A copy of any omitted Exhibit or Schedule will be provided to the
Securities and Exchange Commission upon request.
SCHEDULE A List of names and addresses of Purchasers and liquidation
preference of convertible securities to be purchased