5,085,000 Shares
DT INDUSTRIES, INC.
Common Stock, $.01 par value
SUBSCRIPTION AGREEMENT
London, England
November 25, 1996
To: CS FIRST BOSTON LIMITED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & CO. LIMITED
ABN AMRO ROTHSCHILD
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AND CO. LIMITED
RABO SECURITIES N.V.
SOCIETE GENERALE
WESTDEUTSCHE LANDESBANK GIROZENTRALE
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, of the Company's Common Stock, $.01 par
value ("Securities") (such 1,017,000 shares of Securities being hereinafter
referred to as the "International Firm Securities"), to the several Managers
named in Schedule B hereto ("Managers"). Such offering and sale by the Company
and the Selling Stockholders are hereinafter referred to as the "International
Offering."
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 U.S. Underwriters, at the option of CSFBC, an
aggregate of not more than 250,000 additional shares
of Securities, and the Selling Stockholders also propose to sell to the U.S.
Underwriters, at the option of CSFBC, an aggregate of not more than 360,200
additional outstanding shares of Securities (such 610,200 additional shares of
Securities being hereinafter referred to as the "U.S. Optional Securities") and
(ii) the Company proposes to issue and sell to the Managers, at the option of
CSFBL, an aggregate of not more than 62,500 additional shares of Securities, and
the Selling Stockholders also propose to sell to the Managers, at the option of
CSFBL, an aggregate of not more than 90,050 additional outstanding shares of
Securities (such 152,550 additional shares of Securities being hereinafter
referred to as the "International Optional Securities"). The U.S. Firm
Securities and the U.S. Optional Securities are hereinafter called the "U.S.
Securities"; the International Firm Securities and the International Optional
Securities are hereinafter called the "International Securities"; the U.S. Firm
Securities and the International Firm Securities are hereinafter called the
"Firm Securities"; the U.S. Optional Securities and the International Optional
Securities are hereinafter called the "Optional Securities." The U.S. Securities
and the International Securities are collectively referred to as the "Offered
Securities." To provide for the coordination of their activities, the 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
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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 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.
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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.
(ii) If the Effective Time of the Initial Registration State-
ment is prior to the execution and delivery of this Agreement: (A) on
the Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement
conformed, or will conform, in all material respects to the
requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material fact
and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (C) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of each of the Prospectuses
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
Prospectuses are included, each Registration Statement and each of the
Prospectuses will conform, in all material respects to the
requirements of the Act and the Rules and Regulations, and none of
such documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and each of the
Prospectuses will conform in all material respects to the requirements
of the Act and the Rules and Regulations, none of such documents will
include any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do
not apply to statements in or omissions from a Registration Statement
or either of the Prospectuses based upon (i) written information
furnished to the Company by any Selling Stockholder specifically for
use therein, it being understood and agreed that the only such
information is that described as such in Section 7(b) hereof, and (ii)
written information furnished to the Company by any 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.
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(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, except where the failure to be so qualified or in good
standing, as the case may be, will not, individually or in aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(iv) Each subsidiary of the Company that is a "significant
subsidiary" (as defined in Rule 1-02 of Regulation S-X of the
Commission) or that is listed on Exhibit I hereto (each of the
foregoing being referred to as a "Significant Subsidiary") has been
duly incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with power
and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectuses; and each subsidiary of
the Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except with respect to such subsidiaries and
jurisdictions where the failure to be so qualified or in good
standing, as the case may be, will not, individually or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued and outstanding
capital stock of each Significant Subsidiary has been duly authorized
and validly issued and is fully paid and nonassessable; and the
capital stock of each Significant Subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects, except insofar as such stock has been
pledged, pursuant to credit agreements filed with the Commission, to
secure obligations of the Company and its subsidiaries to their
respective senior lenders, as set forth in Exhibit II hereto.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are, and, when the
Offered Securities have been delivered and paid for in accordance with
this Agreement and the 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 as a result of any of the transactions
contemplated by this Agreement.
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(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, or required to be made, under the
Act and such as may be required under state or foreign securities
laws.
(x) The execution, delivery and performance of this Agreement
and the 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, except with respect to such
breaches, violations and defaults which, individually or in the
aggregate with other breaches, violations and defaults, will not
affect the transactions contemplated hereby and will not have a
material adverse effect on or the Company and its subsidiaries, taken
as a whole; and the Company has full power and authority to authorize,
issue and sell the Offered Securities as contemplated by this
Agreement and the 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 and except
for statutory liens for sums not yet due or which are being
contested in good faith in appropriate proceedings, the Company
and its subsidiaries have good and marketable title to all
real properties and all other properties and assets owned by
them, in each case free from liens, encumbrances and defects
that would individually or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole; and
except as disclosed in the Prospectuses or as will not have
6
a material adverse effect on the Company and its subsidiaries, taken
as a whole, the Company and its subsidiaries hold any leased real or
personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be
made thereof by them.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them, except where the failure to possess such
certificates or permits will not, individually or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole, and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have a
material adverse effect on the Company and its subsidiaries taken as a
whole.
(xiv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent
that may be reasonably expected to have a material adverse effect on
the Company and its subsidiaries taken as a whole.
(xv) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct
the business now operated by them, or presently employed by them, the
loss of which may reasonably be expected, individually or in the
aggregate, to have a material adverse effect on the Company and its
subsidiaries, taken as a whole; and have not received any notice of
infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, have a material adverse effect on
the Company and its subsidiaries taken as a whole.
(xvi) Except as disclosed in the Prospectuses, neither the
Company nor any of its subsidiaries is in violation of any
statute, any rule, regulation, decision or order of any governmental
agency or body or any court, domestic or foreign, relating to
the use, disposal or release of hazardous or toxic substances
or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively,
"environmental laws"), owns or operates any real property contaminated
with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant
to any environmental laws, or is subject to any claim relating
to any environmental laws, which violation, contamination, liability
or claim may reasonably be expected, individually or in the aggregate,
to have a material adverse effect on the Company
7
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, may reasonably be expected, individually or in the
aggregate, to have a material adverse effect on the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, or may reasonably
be expected to materially and adversely affect the ability of the
Company to perform its obligations under this Agreement or the
Underwriting Agreement, or which are otherwise material in the context
of the sale of the Offered Securities; and, to the Company's
knowledge, no such actions, suits or proceedings are threatened or
contemplated.
(xviii) The financial statements included in each Registration
Statement and the Prospectuses present fairly, in all material
respects, the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and
cash flows for the periods shown, and such financial statements have
been prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis; the
schedules included in each Registration Statement present fairly, in
all material respects, the information required to be stated therein;
and the assumptions used in preparing the pro forma financial
statements included in each Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(xix) Except as disclosed in the Prospectuses, since the date of
the latest audited financial statements included in the Prospectuses
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole, and,
except as disclosed in or contemplated by the Prospectuses, there has
been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(xx) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectuses, will not be an
"investment company" as defined in the Investment Company Act of 1940.
8
(xxi) Neither the Company nor any of its subsidiaries does
business with the government of Cuba or with any person located in
Cuba within the meaning of Section 517.075, Florida Statutes and the
Company agrees to comply with such 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,
such Selling Stockholder will convey to the several U.S. Underwriters
and Managers valid and unencumbered title to the Offered Securities to
be delivered by such Selling Stockholder on such Closing Date.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(A) on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement did not include any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement did not include, or
will not include, any untrue statement of a material fact and did not
omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and (C) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each does not
include, and at the time of filing of each of the Prospectuses
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
Prospectuses are included, each Registration Statement and each of the
Prospectuses will not include, any untrue statement of a material fact
or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and each of the
Prospectuses will not include any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
The two preceding sentences apply only to the extent that any
statements in or omissions from a Registration Statement or
9
Prospectus are based on written information furnished to the Company
by such Selling Stockholder specifically for use therein, it being
understood and agreed that the only such information is that described
in Section 7(b) hereof.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and each Selling Stockholder
agree, severally and not jointly, to sell to 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. $33.57 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
Boatmen's Trust Company, as custodian ("Custodian"). Each Selling Stockholder
agrees that the shares represented by the certificates held in custody for the
Selling Stockholders under such Custody Agreements are subject to the interests
of the Managers hereunder and the U.S. 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 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 at a bank reasonably acceptable to CSFBL in the
case of 450,000 Firm Shares and by wire transfer of immediately
available funds to the Custodian at a bank reasonably acceptable to
CSFBL in the case of 567,000 Firm Shares, at the office of ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP ("▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), at 10:00 A.M., New
York time, on December 2, 1996, or at such other time not later than
seven full business days thereafter as 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
10
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 CSFBL, 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 may purchase all or less than all of the
International Optional Securities at the purchase price per Security to be paid
for the International Firm Securities. The Company and the Selling Stockholders
agree, severally and not jointly, to sell the respective number of International
Optional Securities determined as follows: first, the Company shall sell the
number of International Optional Securities specified in such notice, or such
lesser number of Securities as shall bring the total number of Optional
Securities sold by the Company to 312,500 and then, after the Company has sold
all of such 312,500 Optional Securities, each Selling Stockholder shall sell the
respective number of International 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 Stockholder 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
International Firm Securities and the U.S. Firm Securities previously have been,
or simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by CSFBC, on behalf of the Managers and the U.S. 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 U.S. 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 at a bank reasonably acceptable to CSFBL in the
case of Optional Securities sold by the Company and by wire transfer
11
of immediately available funds to the Custodian at a bank reasonably acceptable
to CSFBL 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 CSFBL, 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. $0.62 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.
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, which consent will not be unreasonably withheld, subparagraph (4))
of Rule 424(b) not later than the earlier of (A) the second business day
following the execution and delivery of this Agreement or (B) the fifteenth
business day after the Effective Date of the Initial Registration
Statement.
(b) The Company will advise 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
12
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
U.S. 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 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 earning statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "Availability Date" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter.
(f) The Company will furnish to the Managers copies of
each Registration Statement (four of which will be signed
and will include all exhibits), each related
13
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.
(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) For a period of 90 days after the date of the initial public
offering of the Offered Securities (the "Lock-Up Period"), the Company will
not offer, sell, contract to sell, pledge or otherwise dispose of, directly
or indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
CSFBC, except grants of restricted stock or stock options to employees
pursuant to the terms of a plan in effect on the date hereof (provided that
any such restricted stock or stock options shall not by their terms vest or
be exercisable or transferable during the Lock-Up Period) or the issuance
of stock pursuant to the exercise of any employee stock options outstanding
on the date hereof.
(j) The Company will pay all expenses incident to the performance of
the obligations of the Company and the Selling Stockholders under this
Agreement and for the filing fee incident to, and the reasonable fees and
disbursements of counsel to the U.S. Underwriters in connection with, the
review by the National Association of Securities Dealers, Inc. of the
Offered Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities and for expenses incurred in distributing preliminary
prospectuses and the Prospectuses (including any amendments and supplements
thereto) to the Managers.
14
(k) Each Selling Stockholder agrees to deliver to CSFBC, attention:
Transactions Advisory Group on or prior to the First Closing Date a
properly completed and executed United States Treasury Department Form W-9
(or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(l) Each Selling Stockholder, other than the Fox Family Foundation,
agrees, for the Lock-Up Period, not to offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any additional
shares of the Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, or publicly
disclose the intention to make any such offer, sale, pledge or 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.
(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 U.S. 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.
15
(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 reasonable 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 taken as a whole which, in
the reasonable 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 reasonable 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.
(d) The Managers shall have received an opinion, dated such Closing
Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, counsel for the Company and the Selling
Stockholders, in the agreed form.
(e) 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.
(f) 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
16
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 U.S. 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.
(g) 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.
(h) On such Closing Date, the U.S. 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.
(i) On the Effective Date, the Managers shall have received
agreements from each of the Company's directors and executive officers to
the effect that they will not, for the Lock-Up Period, offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
any shares of the Securities of the Company or securities convertible into
or exchangeable or exercisable for any shares of Securities, or publicly
disclose the intention to make any such offer, sale, pledge or disposition,
without the prior written consent of CSFBC.
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
17
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 and provided, further, that with respect to
any untrue statement or omission or alleged untrue statement or omission
made in any preliminary prospectus, the indemnity agreement contained in
this subsection (a) shall not inure to the benefit of any Manager from whom
the person asserting such losses, claims, damages or liabilities purchased
the Offered Securities concerned, to the extent that any such loss, claim,
damage or liability of such Manager results from the fact that there was
not sent or given to such person, at or prior to the written confirmation
of the sale of such Offered Securities to such person, a copy of the
Prospectus, if required by the Act, if the Company had previously furnished
copies thereof to such Manager.
(b) Each Selling Stockholder, severally and not jointly, will
indemnify and hold harmless each Manager and the Company against any
losses, claims, damages or liabilities, joint or several, to which such
Manager or the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement, either of the Prospectuses, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by
such Selling Stockholder specifically for use therein, and will
reimburse each Manager or the Company for any legal or other
expenses reasonably incurred by such Manager or the Company,
respectively, in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; it being
understood and agreed that the only information furnished by any Selling
Stockholder consists of information concerning such Selling Stockholder set
forth under the caption "Principal and Selling Stockholders" and
in the first paragraph under the caption "Risk Factors -- Surrender of
Voting Control by Controlling Shareholders" in the Prospectuses; provided,
however, that the Selling Stockholders will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue
18
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 and provided,
further, that with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus, the
indemnity agreement contained in this subsection (b) shall not inure to the
benefit of any Manager from whom the person asserting such losses, claims,
damages or liabilities purchased the Offered Securities concerned, to the
extent that any such loss, claim, damage or liability of such Manager
results from the fact that there was not sent or given to such person, at
or prior to the written confirmation of the sale of such Offered Securities
to such person, a copy of the Prospectus, if required by the Act, if the
Company had previously furnished copies thereof to such Manager.
(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 on 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; the concession and reallowance figures appearing
in the fifth paragraph under the caption "Subscription and Sale"; and the
information contained in the sixth, seventh, eighth and ninth paragraphs
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
19
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section for
any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to local counsel)
for all indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the
same set of allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could 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 unavail-
able 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
20
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, 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 and to each person, if
any, who controls any Selling Stockholder 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.
21
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), (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: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, or, if sent to the
Selling Stockholders or any of them, will be mailed, delivered or telegraphed
and confirmed to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ at ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇; 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.
22
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.
23
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 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title VP-Finance
THE SELLING STOCKHOLDERS NAMED IN SCHEDULE A
ATTACHED HERETO, ACTING SEVERALLY
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Attorney-in-fact
The foregoing Underwriting Agreement is hereby confirmed and accepted as of
the date first above written.
CS FIRST BOSTON LIMITED
By its duly authorized attorney-in-fact:
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & CO. LIMITED
ABN AMRO ROTHSCHILD
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AND CO. LIMITED
RABO SECURITIES N.V.
SOCIETE GENERALE
WESTDEUTSCHE LANDESBANK GIROZENTRALE
Each by its duly authorized attorney-in-fact:
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-23-
SCHEDULE A
NUMBER OF
NUMBER OF INTERNATIONAL INTERNATIONAL OPTIONAL
SELLING STOCKHOLDER FIRM SECURITIES TO BE SOLD SECURITIES TO BE SOLD
------------------- -------------------------- ----------------------
Peer Investors, L.P. 388,122 63,273
Peer Investors II, L.P. 67,748 11,044
Fox Family Foundation 67,000 10,050
Harbour Group II Management Co. 34,860 5,683
Harbour Group Investments II, L.P. 9,270 0
------- ------
Total 567,000 90,050
======= ======
A-1
SCHEDULE B
NUMBER OF
INTERNATIONAL
FIRM SECURITIES
MANAGER TO BE PURCHASED
----------------------------------------------------- ---------------
CS First Boston Limited ........................... 254,250
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International ................ 254,250
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. Limited ................... 254,250
ABN AMRO Rothschild ............................... 50,850
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Co. Limited ................... 50,850
Rabo Securities N.V. .............................. 50,850
Societe Generale .................................. 50,850
Westdeutsche Landesbank Girozentrale .............. 50,850
-----------
Total 1,017,000
===========
A-2
The following page contains a list of Exhibits which have been
intentionally omitted by the Registrant pursuant to Item 601(b)(2) of Regulation
S-K.
A copy of any omitted Exhibit will be provided to the Securities and
Exchange Commission upon request.
Exhibit I - Significant Subsidiaries
Exhibit II - Pledges of Stock of Significant Subsidiaries