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EXHIBIT 1.2
1,017,000 SHARES
DT INDUSTRIES, INC.
COMMON STOCK, $.01 PAR VALUE
SUBSCRIPTION AGREEMENT
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
, ▇▇▇▇
To: CS FIRST BOSTON LIMITED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & CO. LIMITED
c/o: CS FIRST BOSTON LIMITED ("CSFBL")
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Dear Sirs:
1. Introductory. DT Industries, Inc., a Delaware corporation
("Company"), proposes to issue and sell 450,000 shares, and the stockholders
listed in Schedule A attached hereto ("Selling Stockholders") propose severally
to sell an aggregate of 567,000 outstanding shares (collectively, the
"International Offering") to the several Managers named in Schedule B hereto
("Managers") of the Company's Common Stock, $.01 par value ("Securities") (such
1,017,000 shares of Securities hereinafter referred to as the "International
Firm Securities").
It is understood that the Company and the Selling Stockholders are
concurrently entering into an Underwriting Agreement, dated the date hereof
("Underwriting Agreement"), with certain United States underwriters listed in
Schedule B thereto (the "U.S. Underwriters"), for whom CS First Boston
Corporation ("CSFBC"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇▇▇ Wertheim
& Co. are acting as representatives (the "U.S. Representatives"), relating to
the concurrent offering and sale of 4,068,000 shares of Securities (" U.S. Firm
Securities") in the United States and Canada ("U.S. Offering"), of which
1,800,000 shares will be offered by the Company and 2,268,000 shares will be
offered by the Selling Stockholders.
In addition, as set forth below, (i) the Company proposes to issue and
sell to the Underwriters, at the option of CSFBC, an aggregate of not more than
250,000 additional shares of Securities ("U.S. Optional Securities") and the
Selling Stockholders also propose to sell to the Underwriters, at the option of
CSFBC, an aggregate of not more than 360,200 additional outstanding shares of
Securities (such 610,200 additional shares of Securities being hereinafter
referred to as the "U.S. Optional Securities") and (ii) the Company proposes to
issue and sell to the Managers, at the option of CSFBL, an aggregate of not
more than 62,500 additional shares of Securities and the Selling Stockholders
also propose to sell to the Managers, at the
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option of CSFBL, an aggregate of not more than 90,050 additional outstanding
shares of Securities (such 152,550 additional shares of Securities being
hereinafter referred to as the "International Optional Securities"). The U.S.
Firm Securities and the U.S. Optional Securities are hereinafter called the
"U.S. Securities"; the International Firm Securities and the International
Optional Securities are hereinafter called the "International Securities"; the
U.S. Firm Securities and the International Firm Securities are hereinafter
called the "Firm Securities"; the U.S. Optional Securities and the
International Optional Securities are hereinafter called the "Optional
Securities." The U.S. Securities and the International Securities are
collectively referred to as the "Offered Securities." To provide for the
coordination of their activities, the U.S. Underwriters and the Managers have
entered into an Agreement Between U.S. Underwriters and Managers which permits
them, among other things, to sell the Offered Securities to each other for
purposes of resale.
The Company and the Selling Stockholders hereby agree with the several
Managers as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders.
(a) The Company represents and warrants to, and agrees
with, the several Managers that:
(i) A registration statement (No. 333-14955)
relating to the Offered Securities, including a form of
prospectus relating to the U.S. Securities and a form of
prospectus relating to the International Securities being
offered in the International Offering, has been filed with the
Securities and Exchange Commission ("Commission") and either
(A) has been declared effective under the Securities Act of
1933 ("Act") and is not proposed to be amended or (B) is
proposed to be amended by amendment or post-effective
amendment. If such registration statement (the "initial
registration statement") has been declared effective, either
(A) an additional registration statement (the "additional
registration statement") relating to the Offered Securities
may have been filed with the Commission pursuant to Rule
462(b) ("Rule 462(b)") under the Act and, if so filed, has
become effective upon filing pursuant to such Rule and the
Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if
applicable, the additional registration statement or (B) such
an additional registration statement is proposed to be filed
with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such Rule and upon such
filing the Offered Securities will all have been duly
registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the
Company does not propose to amend the initial registration
statement or, if an additional registration statement has been
filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement
has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any)
to each such registration statement has been declared
effective by the Commission or has become effective upon
filing
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pursuant to Rule 462(c) ("Rule 462(c)") under the Act
or, in the case of the additional registration statement, Rule
462(b). For purposes of this Agreement, "Effective Time" with
respect to the initial registration statement or, if filed
prior to the execution and delivery of this Agreement, the
additional registration statement means (A) if the Company has
advised CSFBL that it does not propose to amend such
registration statement, the date and time as of which such
registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to
Rule 462(c), or (B) if the Company has advised CSFBL that it
proposes to file an amendment or post-effective amendment to
such registration statement, the date and time as of which
such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration
statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised CSFBL
that it proposes to file one, "Effective Time" with respect to
such additional registration statement means the date and time
as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "Effective Date" with
respect to the initial registration statement or the
additional registration statement (if any) means the date of
the Effective Time thereof. The initial registration
statement, as amended at its Effective Time, including all
material incorporated by reference therein, including all
information contained in the additional registration statement
(if any) and deemed to be a part of the initial registration
statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of
the Form on which it is filed and including all information
(if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b)
("Rule 430A(b)") under the Act, is hereinafter referred to as
the "Initial Registration Statement." The additional
registration statement, as amended at its Effective Time,
including the contents of the initial registration statement
incorporated by reference therein and including all
information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to
Rule 430A(b), is hereinafter referred to as the "Additional
Registration Statement." The Initial Registration Statement
and the Additional Registration Statement are hereinafter
referred to collectively as the "Registration Statements" and
individually as a "Registration Statement." The form of
prospectus relating to the U.S. Securities and the form of
prospectus relating to the International Securities, each as
first filed with the Commission pursuant to and in accordance
with Rule 424(b) ("Rule 424(b)") under the Act or (if no such
filing is required) as included in a Registration Statement,
including all material incorporated by reference in each such
prospectus, are hereinafter referred to as the "U.S.
Prospectus" and the "International Prospectus", respectively,
and collectively as the "Prospectuses." No document has been
or will be prepared or distributed in reliance on Rule 434
under the Act.
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(ii) If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery
of this Agreement: (A) on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement
conformed in all respects to the requirements of the Act and
the rules and regulations of the Commission ("Rules and
Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement
conformed, or will conform, in all respects to the
requirements of the Act and the Rules and Regulations and did
not include, or will not include, any untrue statement of a
material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading, and (C) on the
date of this Agreement, the Initial Registration Statement
and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each
conforms, and at the time of filing of each of the
Prospectuses pursuant to Rule 424(b) or (if no such filing is
required) at the Effective Date of the Additional Registration
Statement in which the Prospectuses are included, each
Registration Statement and each of the Prospectuses will
conform, in all respects to the requirements of the Act and
the Rules and Regulations, and none of such documents
includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of
the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement: on the Effective
Date of the Initial Registration Statement, the Initial
Registration Statement and each of the Prospectuses will
conform in all respects to the requirements of the Act and the
Rules and Regulations, none of such documents will include any
untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading, and no Additional
Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions
from a Registration Statement or either of the Prospectuses
based upon written information furnished to the Company by any
Manager through CSFBL or by any U.S. Underwriter through the
U.S. Representatives specifically for use therein, it being
understood and agreed that the only such information is that
described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and
other) to own its properties and conduct its business as
described in the Prospectuses; and the Company is duly
qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification.
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(iv) Each subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its
properties and conduct its business as described in the
Prospectuses; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification; all of the issued and outstanding capital stock
of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the
capital stock of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(v) The Offered Securities and all other
outstanding shares of capital stock of the Company have been
duly authorized; all outstanding shares of capital stock of
the Company are, and, when the Offered Securities have been
delivered and paid for in accordance with this Agreement and
the Underwriting Agreement on each Closing Date (as defined
below), such Offered Securities will have been validly issued,
fully paid and nonassessable and will conform to the
description thereof contained in the Prospectuses; and the
stockholders of the Company have no preemptive rights with
respect to the Securities.
(vi) Except as disclosed in the Prospectuses,
there are no contracts, agreements or understandings between
the Company and any person that would give rise to a valid
claim against the Company or any Manager or U.S. Underwriter
for a brokerage commission, finder's fee or other like
payment.
(vii) Except as disclosed in the Prospectuses,
there are no contracts, agreements or understandings between
the Company and any person granting such person the right to
require the Company to file a registration statement under the
Act with respect to any securities of the Company owned or to
be owned by such person or to require the Company to include
such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act.
(viii) The Securities are listed on The Nasdaq
Stock Market's National Market.
(ix) No consent, approval, authorization, or order
of, or filing with, any governmental agency or body or any
court is required for the consummation of the transactions
contemplated by this Agreement or the Underwriting Agreement
in connection with the issuance and sale of the Offered
Securities by the Company, except such as have been obtained
and made under the Act and such as may be required under state
securities laws.
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(x) The execution, delivery and performance of
this Agreement and the Underwriting Agreement, and the
issuance and sale of the Offered Securities by the Company
will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute,
any rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction
over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject,
or the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as
contemplated by this Agreement and the Underwriting Agreement,
respectively.
(xi) This Agreement and the Underwriting Agreement
have been duly authorized, executed and delivered by the
Company.
(xii) Except as disclosed in the Prospectuses, the
Company and its subsidiaries have good and marketable title to
all real properties and all other properties and assets owned
by them, in each case free from liens, encumbrances and
defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectuses, the
Company and its subsidiaries hold any leased real or personal
property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be
made thereof by them.
(xiii) The Company and its subsidiaries possess
adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to
conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the Company and its subsidiaries
taken as a whole.
(xiv) No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the
Company, is imminent that might have a material adverse effect
on the Company and its subsidiaries taken as a whole.
(xv) The Company and its subsidiaries own, possess
or can acquire on reasonable terms, adequate trademarks, trade
names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual
property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice
of infringement of or conflict with asserted rights of others
with respect to any intellectual property rights that, if
determined
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adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse
effect on the Company and its subsidiaries taken as a whole.
(xvi) Except as disclosed in the Prospectuses,
neither the Company nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or
order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release
of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental
laws"), owns or operates any real property contaminated with
any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to
any environmental laws, or is subject to any claim relating to
any environmental laws, which violation, contamination,
liability or claim would individually or in the aggregate have
a material adverse effect on the Company and its subsidiaries
taken as a whole; and the Company is not aware of any pending
investigation which might lead to such a claim.
(xvii) Except as disclosed in the Prospectuses,
there are no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely to the
Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the condition
(financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a
whole, or would materially and adversely affect the ability of
the Company to perform its obligations under this Agreement or
the Underwriting Agreement, or which are otherwise material in
the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are threatened or, to the
Company's knowledge, contemplated.
(xviii) The financial statements included in each
Registration Statement and the Prospectuses present fairly the
financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with
the generally accepted accounting principles in the United
States applied on a consistent basis and the schedules
included in each Registration Statement present fairly the
information required to be stated therein; and the assumptions
used in preparing the pro forma financial statements included
in each Registration Statement and the Prospectus provide a
reasonable basis for presenting the significant effects
directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein
reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
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(xix) Except as disclosed in the Prospectuses,
since the date of the latest audited financial statements
included in the Prospectuses there has been no material
adverse change, nor any development or event involving a
prospective material adverse change, in the condition
(financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a
whole, and, except as disclosed in or contemplated by the
Prospectuses, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of
its capital stock.
(xx) The Company is not and, after giving effect
to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectuses, will not be an "investment company" as defined
in the Investment Company Act of 1940.
(xxi) Neither the Company nor any of its affiliates
does business with the government of Cuba or with any person
or affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes and the Company agrees to comply
with such Section if prior to the completion of the
distribution of the Offered Securities it commences doing such
business.
(b) Each Selling Stockholder severally represents and
warrants to, and agrees with, the several Managers that:
(i) Such Selling Stockholder has and on each
Closing Date hereinafter mentioned will have valid and
unencumbered title to the Offered Securities to be delivered
by such Selling Stockholder on such Closing Date and full
right, power and authority to enter into this Agreement and
the Underwriting Agreement and to sell, assign, transfer and
deliver the Offered Securities to be delivered by such Selling
Stockholder on such Closing Date hereunder; and upon the
delivery of and payment for the Offered Securities on each
Closing Date hereunder the several Underwriters and Managers
will acquire valid and unencumbered title to the Offered
Securities to be delivered by such Selling Stockholder on such
Closing Date.
(ii) If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery
of this Agreement: (A) on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement
conformed in all respects to the requirements of the Act and
the Rules and Regulations and did not include any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date
of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all
respects to the requirements of the Act and the Rules and
Regulations did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not
omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading,
and (C) on the date of this Agreement, the
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Initial Registration Statement and, if the Effective Time of
the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of
filing of each of the Prospectuses pursuant to Rule 424(b) or
(if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectuses
are included, each Registration Statement and each of the
Prospectuses will conform, in all respects to the requirements
of the Act and the Rules and Regulations, and none of such
documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of
the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement: on the Effective
Date of the Initial Registration Statement, the Initial
Registration Statement and each of the Prospectuses will
conform in all respects to the requirements of the Act and the
Rules and Regulations, none of such documents will include any
untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading. The two preceding
sentences apply only to the extent that any statements in or
omissions from a Registration Statement or Prospectus are
based on written information furnished to the Company by such
Selling Stockholder specifically for use therein.
3. Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company and each
Selling Stockholder agree, severally and not jointly, to sell to the Managers,
and the Managers agree, severally and not jointly, to purchase from the Company
and each Selling Stockholder, at a purchase price of U.S. $_____ per share,
that number of International Firm Securities (rounded up or down, as determined
by CSFBL in its discretion, in order to avoid fractions) obtained by
multiplying 450,000 International Firm Securities in the case of the Company
and the number of International Firm Securities set forth opposite the name of
such Selling Stockholder in Schedule A hereto, in the case of a Selling
Stockholder, in each case by a fraction the numerator of which is the number of
International Firm Securities set forth opposite the name of such Manager in
Schedule B hereto and the denominator of which is the total number of
International Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold
by the Selling Stockholders have been placed in custody, for delivery under
this Agreement and the Underwriting Agreement, under Custody Agreements made
with , as custodian ("Custodian"). Each Selling Stockholder
agrees that the shares represented by the certificates held in custody for the
Selling Stockholders under such Custody Agreements are subject to the interests
of the Managers hereunder and the Underwriters under the Underwriting
Agreement, that the arrangements made by the Selling Stockholders for such
custody are to that extent irrevocable, and that the obligations of the Selling
Stockholders hereunder and thereunder shall not terminate by operation of law,
whether by the death of any individual Stockholder or the occurrence of any
other event, or in the case of a trust, by the death of any trustee or trustees
or the termination of such trust. If any individual Selling Stockholder or any
such trustee or
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trustees should die, of if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities under
this Agreement and the Underwriting Agreement, certificates for such Offered
Securities shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement and the Underwriting Agreement as if such death or
other event or termination had not occurred, regardless of whether or not the
custodian shall have received notice of such death or other event or
termination.
The Company and the Custodian will deliver the International Firm
Securities to CSFBL for the accounts of the Managers against payment of the
purchase price by [wire transfer] of immediately available funds to the Company
in the case of 450,000 Firm Shares and to ____________ in the case of 567,000
Firm Shares, at the office of _________________________, at _____ A.M., New
York time, on _______________, or at such other time not later than seven full
business days thereafter as CSFBL and the Company determine, such time being
herein referred to as the "First Closing Date." For purposes of Rule 15c6-1
under the Securities Exchange Act of 1934, the First Closing Date (if later
than the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the U.S. Offering and the International Offering. The certificates
for the International Firm Securities so to be delivered will be in definitive
form, in such denominations and registered in such names as CSFBL requests and
will be made available for checking and packaging at the above office of
_________________________, at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and
the Selling Stockholders from time to time not more than 30 days subsequent to
the date of the Prospectuses, the Managers and the Underwriters may purchase
all or less than all of the Optional Securities at the purchase price per
Security to be paid for the Firm Securities. The Company and the Selling
Stockholders agree, severally and not jointly, to sell the respective number of
Optional Securities determined as follows: first, the Company shall sell the
number of Optional Securities specified in such notice, or such lesser number
of Securities as shall bring the total number of International Optional
Securities sold by the Company to 62,500 and then, after the Company has sold
all of such 62,500 International Optional Securities, the respective number of
Optional Securities obtained by multiplying (a)(i) the number of International
Optional Securities specified in such notice, less (ii) the number of
International Optional Securities sold by the Company pursuant to such notice
by (b) a fraction the numerator of which is the number of shares set forth
opposite the names of such Selling Stockholders in Schedule A hereto under the
caption "Number of International Optional Securities to be Sold" and the
denominator of which is the total number of International Optional Securities
to be sold by the Selling Stockholders (subject to adjustment by CSFBC to
eliminate fractions). Such International Optional Securities shall be
purchased from the Company and each Selling Stockholder for the account of each
Manager in the same proportion as the number of International Firm Securities
set forth opposite such Manager's name bears to the total number of
International Firm Securities (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Managers only for the purpose of
covering over-allotments made in connection with the sale of the International
Firm Securities. No Optional Securities shall be sold or delivered unless the
Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Securities or any portion thereof
may be exercised from time to time and
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to the extent not previously exercised may be surrendered and terminated at any
time upon notice by CSFBC, on behalf of the Managers and the Underwriters, to
the Company and the Selling Stockholders. It is understood that CSFBC is
authorized to make payment for and accept delivery of such Optional Securities
on behalf of the Underwriters and Managers pursuant to the terms of CSFBC's
instructions to the Company.
Each time for the delivery of and payment for the International
Optional Securities, being herein referred to as an "Optional Closing Date",
which may be the First Closing Date (the First Closing Date and each Optional
Closing Date, if any, being sometimes referred to as a "Closing Date"), shall
be determined by CSFBC but shall be not later than five full business days
after written notice of election to purchase Optional Securities is given. The
Company and the Custodian will deliver the International Optional Securities
being purchased on each Optional Closing Date to CSFBL for the accounts of the
several Managers, against payment of the purchase price therefor by [wire
transfer] of immediately available funds to the Company in the case of Optional
Securities sold by the Company and ____________ in the case of Optional
Securities sold by the Selling Stockholders, at the above office
of_______________. The certificates for the International Optional Securities
being purchased on each Optional Closing Date will be in definitive form, in
such denominations and registered in such names as CSFBL requests upon
reasonable notice prior to such Optional Closing Date and will be made
available for checking and packaging at the above office of
_________________________, at a reasonable time in advance of such Optional
Closing Date.
The Company will pay to the Managers as aggregate compensation for
their commitments hereunder and for their services in connection with the
purchase of the International Securities and the management of the offering
thereof, if the sale and delivery of the International Securities to the
Managers provided herein is consummated, an amount equal to U.S. $__________
per International Security purchased, which may be divided among the Managers
in such proportions as they may determine. Such payment will be made on the
First Closing Date in the case of the International Firm Securities and on each
Optional Closing Date in the case of the International Optional Securities sold
to the Manager on such Closing Date, in each case by way of deduction by the
Managers of said amount from the purchase price for the International
Securities referred to above.
4. Offering by Managers. It is understood that the several
Managers propose to offer the International Securities for sale to the public
as set forth in the International Prospectus.
In connection with the distribution of the International Securities,
the Managers, through a stabilizing manager, may over-allot or effect
transactions on any exchange, in any over-the-counter market or otherwise which
stabilize or maintain the market prices of the International Securities at
levels other than those which might otherwise prevail, but in such event and
in relation thereto, the Managers will act for themselves and not as agents of
the Company, and any loss resulting from over-allotment and stabilization will
be borne, and any profit arising therefrom will be beneficially retained, by
the Managers. Such stabilizing, if commenced, may be discontinued at any time.
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5. Certain Agreements of the Company and the Selling
Stockholders. The Company agrees with the several Managers and the Selling
Stockholders that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement,
the Company will file each of the Prospectuses with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable
and if consented to by CSFBL, subparagraph (4)) of Rule 424(b) not
later than the earlier of (A) the second business day following the
execution and delivery of this Agreement or (B) the fifteenth business
day after the Effective Date of the Initial Registration Statement.
(b) The Company will advise CSFBL promptly of any such
filing pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior
to 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time either Prospectus is printed and
distributed to any Manager or Underwriter, or will make such filing at
such later date as shall have been consented to by CSFBL.
(c) The Company will advise CSFBL promptly of any
proposal to amend or supplement the initial or any additional
registration statement as filed or either of the related prospectuses
or the Initial Registration Statement, the Additional Registration
Statement (if any) or either of the Prospectuses and will not effect
such amendment or supplementation without CSFBL's prior consent; and
the Company will also advise CSFBL promptly of the effectiveness of
each Registration Statement (if its Effective Time is subsequent to
the execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or either of the
Prospectuses and of the institution by the Commission of any stop
order proceedings in respect of a Registration Statement and will use
its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(d) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any U.S. Underwriter, Manager or dealer, any
event occurs as a result of which either or both of the Prospectuses
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend
either or both of the Prospectuses to comply with the Act, the Company
will promptly notify CSFBL of such event and will promptly prepare and
file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBL's consent
to, nor the Managers' delivery of, any such
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amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(e) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of
the Additional Registration Statement) which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(f) The Company will furnish to the Managers copies of
each Registration Statement (four of which will be signed and will
include all exhibits), each related preliminary prospectus relating to
the International Securities, and, until completion of the
distribution of the International Securities as determined by CSFBL,
the International Prospectus and all amendments and supplements to
such documents, in each case in such quantities as CSFBL requests.
The International Prospectus shall be so furnished on or prior to 3:00
P.M., New York time, on the business day following the later of the
execution and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other such documents shall be so
furnished as soon as available. The Company and the Selling
Stockholders will pay the expenses of printing and distributing to the
Managers all such documents.
(g) No action has been or, prior to the completion of the
distribution of the Offered Securities, will be taken by the Company
in any jurisdiction outside the United States and Canada that would
permit a public offering of the Offered Securities, or possession or
distribution of the International Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus issued in
connection with the offering of the Offered Securities, or any other
offering material, in any country or jurisdiction where action for
that purpose is required.
(h) During the period of five years hereafter, the
Company will furnish to CSFBL and, upon request, to each of the other
Managers, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the
Company will furnish to CSFBL (i) as soon as available, a copy of each
report and any definitive proxy statement of the Company filed with
the Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as CSFBL may reasonably request.
(i) The Company will pay all expenses incident to the
performance of the obligations of the Company and the Selling
Stockholders under this Agreement and for the filing fee incident to,
and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the National
Association of Securities Dealers, Inc. of the Offered Securities, for
any travel expenses of the Company's officers
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and employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the
Offered Securities and for expenses incurred in distributing
preliminary prospectuses and the Prospectuses (including any
amendments and supplements thereto) to the Managers.
(j) For a period of 90 days after the date of the initial
public offering of the Offered Securities, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFBC, except grants of employee stock options
pursuant to the terms of a plan in effect on the date hereof,
issuances of Securities pursuant to the exercise of such options or
the exercise of any other employee stock options outstanding on the
date hereof.
(k) Each Selling Stockholder agrees to deliver to CSFBC,
attention: Transactions Advisory Group on or prior to the First
Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified
by Treasury Department regulations in lieu thereof).
(l) Each Selling Stockholder, other than the Fox Family
Foundation, agrees, for a period of 90 days after the date of the
initial public offering of the Offered Securities, not to offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Securities of the Company or
securities convertible into or exchangeable or exercisable for any
shares of Securities, or publicly disclose the intention to make any
such offer, sale, pledge or disposal, without the prior written
consent of CSFBC.
6. Conditions of the Obligations of the Managers. The
obligations of the several Managers to purchase and pay for the International
Firm Securities on the First Closing Date and the International Optional
Securities to be purchased on each Optional Closing Date will be subject to the
accuracy of the representations and warranties on the part of the Company and
the Selling Stockholders herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company and the Selling Stockholders of their obligations hereunder and to the
following additional conditions precedent:
(a) The Managers shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of Price Waterhouse LLP in the agreed form.
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(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or such later
date as shall have been consented to by CSFBL. If the Effective Time
of the Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time either Prospectus is printed
and distributed to any Manager or Underwriter, or shall have occurred
at such later date as shall have been consented to by CSFBL. If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, each of the Prospectuses
shall have been filed with the Commission in accordance with the Rules
and Regulations and Section 5(a) of this Agreement. Prior to such
Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of any
Selling Stockholder, the Company or the Managers, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of
CSFBL, be likely to prejudice materially the success of the proposed
issue, sale or distribution of the International Securities, whether
in the primary market or in respect of dealings in the secondary
market, or (ii)(A) any change, or any development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiaries
which, in the judgment of CSFBL, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the International Securities;
(B) any downgrading in the rating of any debt securities of the
Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and
no implication of a possible downgrading, of such rating); (C) any
suspension or limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (D) any
banking moratorium declared by U.S. Federal or, New York authorities;
or (E) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by the United States
Congress or any other substantial national or international calamity
or emergency if, in the judgment of CSFBL, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the International Securities.
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(d) The Managers shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ L.L.P.,
counsel for the Company, in the agreed form.
(e) The Managers shall have received the opinion
contemplated in the Power of Attorney executed and delivered by each
Selling Stockholder and an opinion, dated such Closing Date, of
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the Selling
Stockholders, in the agreed form.
(f) The Managers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
Zavis, counsel for the Managers, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectuses and other related matters as
the Managers may require, and the Selling Stockholders and the Company
shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(g) The Managers shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of
the Company in this Agreement are true and correct; the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time either
Prospectus was printed and distributed to any Manager or Underwriter;
and, subsequent to the respective date of the most recent financial
statements in the Prospectuses, there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated
by the Prospectuses or as described in such certificate.
(h) The Managers shall have received a letter, dated such
Closing Date, of Price Waterhouse LLP which meets the requirements of
subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three
business days prior to such Closing Date for the purposes of this
subsection.
(i) On such Closing Date, the Underwriters shall have
purchased the U.S. Firm Securities or the U.S. Optional Securities, as
the case may be, pursuant to the Underwriting Agreement.
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Documents described as being "in the agreed form" are documents which are in
the forms which have been initialed for the purpose of identification by ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇, copies of which are held by the Company and CSFBL with such
changes as CSFBL may approve. The Company and the Selling Stockholders will
furnish the Managers with such conformed copies of such opinions, certificates,
letters and documents as the Managers reasonably request. CSFBL may in its sole
discretion waive on behalf of the Managers compliance with any conditions to
the obligations of the Managers hereunder, whether in respect of an Optional
Closing Date or otherwise.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each
Manager against any losses, claims, damages or liabilities, joint or
several, to which such Manager may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in any Registration Statement, either of the Prospectuses, or any
amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse each Manager for any legal or other expenses
reasonably incurred by such Manager in connection with investigating
or defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Manager through CSFBL
specifically for use therein, it being understood and agreed that the
only information furnished by any Manager consists of the information
described as such in subsection (c) below.
(b) Each Selling Stockholder, severally and not jointly,
will indemnify and hold harmless each Manager against any losses,
claims, damages or liabilities, joint or several, to which such
Manager may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any
Registration Statement, either of the Prospectuses, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the
Company by such Selling Stockholder specifically for use therein, and
will reimburse each Manager for any legal or other expenses reasonably
incurred by such Manager in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Selling Stockholders will not be
liable in any such case to
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the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement in
or omission or alleged omission from any of such documents in reliance
upon and in conformity with written information furnished to the
Company by a Manager specifically for use therein, it being understood
and agreed that the only such information furnished by any Manager
consists of the information described as such in subsection (c) below.
(c) Each Manager will severally and not jointly indemnify
and hold harmless the Company and each Selling Stockholder against any
losses, claims, damages or liabilities to which the Company or such
Selling Stockholder may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any
Registration Statement, either of the Prospectuses, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the
Company by such Manager through CSFBL specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by
the Company and each Selling Stockholder in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed
that the only such information furnished by any Manager consists of
the following information in the International Prospectus furnished on
behalf of each Manager: the last paragraph at the bottom of the cover
page concerning the terms of the offering by the Managers, the legends
concerning over-allotments, stabilizing and passive market making on
the inside front cover page and the concession and reallowance figures
appearing in the fifth paragraph under the caption "Subscription and
Sale."
(d) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party under subsection (a), (b) or (c) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise
than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without
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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.
(e) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified party
under subsection (a), (b) or (c) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities
referred to in subsection (a), (b) or (c) above (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Managers
on the other from the offering of the International Securities or (ii)
if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and the Selling Stockholders on the
one hand and the Managers on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the Managers on the other
shall be deemed to be in the same proportion as the total net proceeds
from the offering of the International Securities (before deducting
expenses) received by the Company and the Selling Stockholders bear to
the total underwriting discounts and commissions received by the
Managers. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, the
Selling Stockholders or the Managers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Manager
shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Manager has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Managers' obligations
in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling
Stockholders under this Section shall be in addition to any liability
which the Company and the Selling Stockholders may otherwise have and
shall extend, upon the same terms and conditions,
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to each person, if any, who controls any Manager within the meaning of
the Act; and the obligations of the Managers under this Section shall
be in addition to any liability which the respective Managers may
otherwise have and shall extend, upon the same terms and conditions,
to each director of the Company, to each officer of the Company who
has signed a Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
8. Default of Managers. If any Manager or Managers default in
their obligations to purchase International Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of
International Securities that such defaulting Manager or Managers agreed but
failed to purchase does not exceed 10% of the total number of shares of
International Securities that the Managers are obligated to purchase on such
Closing Date, CSFBL may make arrangements satisfactory to the Company and the
Selling Stockholders for the purchase of such International Securities by other
persons, including any of the Managers, but if no such arrangements are made by
such Closing Date, the non-defaulting Managers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the
International Securities that such defaulting Managers agreed but failed to
purchase on such Closing Date. If any Manager or Managers so default and the
aggregate number of shares of International Securities with respect to which
such default or defaults occur exceeds 10% of the total number of shares of
International Securities that the Managers are obligated to purchase on such
Closing Date and arrangements satisfactory to CSFBL and the Company and the
Selling Stockholders for the purchase of such International Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Manager or the
Company or the Selling Stockholders, except as provided in Section 9 (provided
that if such default occurs with respect to International Optional Securities
after the First Closing Date, this Agreement will not terminate as to the
International Firm Securities or any International Optional Securities
purchased prior to such termination). As used in this Agreement, the term
"Manager" includes any person substituted for a Manager under this Section.
Nothing herein will relieve a defaulting Manager from liability for its
default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Selling Stockholders, of the Company or its officers and of
the several Managers set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Manager, any Selling
Stockholder, the Company or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and
payment for the International Securities. If this Agreement is terminated
pursuant to Section 8 or if for any reason the purchase of the International
Securities by the Managers is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5 and the respective obligations of the Company, the Selling Stockholders and
the Managers pursuant to Section 7 shall remain in effect, and if any
International Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain
in effect. If the purchase of the International Securities by the Managers is
not consummated for any reason other than solely because of the termination of
this Agreement pursuant to Section 8 or the occurrence of any event specified
in Section 6(c)(i) or clause (C),
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(D), or (E) of Section 6(c)(ii), the Company and the Selling Stockholders will,
jointly and severally, reimburse the Managers for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the International Securities.
10. Notices. All communications hereunder will be in writing and,
if sent to the Managers, will be mailed, delivered or telexed and confirmed to
CS First Boston Limited at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ England, Attention:
Company Secretary, or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Corporate Centre, Suite 2-300, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇; provided,
however, that any notice to a Manager pursuant to Section 7 will be mailed,
delivered or telexed and confirmed to such Manager.
11. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
12. Representation of Managers. CSFBL will act for the several
Managers in connection with this financing, and any action under this Agreement
taken by CSFBL will be binding upon all the Managers. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ will act for the Selling Stockholders in connection with such
transactions, and any action under or in respect of this Agreement taken by
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ will be binding upon all the Selling
Stockholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
-21-
22
If the foregoing is in accordance with the Managers' understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholders, the Company and the several Managers in accordance with its
terms.
Very truly yours,
DT INDUSTRIES, INC.
By:
-----------------------------------
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE A ATTACHED HERETO, ACTING
SEVERALLY
By:
-----------------------------------
Attorney-in-fact
The foregoing Subscription Agreement is hereby confirmed and accepted as
of the date first above written.
CS FIRST BOSTON LIMITED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & CO. LIMITED
Acting on behalf of themselves and as the
Representatives of the several managers
CS FIRST BOSTON LIMITED
By:
---------------------------------------
[Insert title]
-22-
23
SCHEDULE A
Number of
Number of International International Optional
Selling Stockholder Firm Securities to be sold Securities to be Sold
------------------- -------------------------- ---------------------
-----------------------------------------------
Total.................................... 567,000 90,050
===============================================
▇-▇
▇▇
▇▇▇▇▇▇▇▇ ▇
Number of
International Firm
Securities
Manager to be Purchased
-------------------------------------------------------------------------- ------------------
CS First Boston Limited...............................................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International....................................
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. Limited.......................................
----------------
Total.......................................................... 1,017,000
================
A-2