As filed with the Securities and Exchange Commission on
February 1, 1995
Registration Statement No. 33-
- --------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------------
MARK IV INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 23-1733979
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
501 John James Audubon Parkway
P.O. Box 810
Amherst, New York 14226-0810
(716) 689-4972
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
WILLIAM P. MONTAGUE
EXECUTIVE VICE PRESIDENT
Mark IV Industries, Inc.
501 John James Audubon Parkway
P.O. Box 810
Amherst, New York 14226-0810
(716) 689-4972
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------
COPIES TO:
DAVID L. FINKELMAN, ESQ.
STROOCK & STROOCK & LAVAN
Seven Hanover Square
New York, N.Y. 10004-2696
GERALD S. LIPPES, ESQ.
LIPPES, SILVERSTEIN,
MATHIAS & WEXLER
700 Guaranty Building
28 Church Street
Buffalo, N.Y. 14202-3950
ROGER KIMMEL, ESQ.
LATHAM & WATKINS
855 Third Avenue
New York, N.Y. 10022
--------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
As soon as practicable after this Registration Statement
becomes effective.
---------------
If the only securities being registered on this form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. / /
If any of the securities being registered on this form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest
reinvestment plans, check the following box. / X /
----
-----------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
PROPOSED PROPOSED MAXIMUM
AMOUNT TO BE MAXIMUM AGGREGATE AGGREGATE OFFERING AMOUNT OF
TITLE OF SHARES TO BE REGISTERED REGISTERED PRICE PER UNIT<F1> PRICE <F1> REGISTRATION FEE
- -------------------------------- ------------ ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value . . 2,260,125<F2> $19.5625 $44,213,695.31 $15,246.21
</TABLE>
- ----------------------
[FN] Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) on the basis of
the price of the Common Stock on the New York Stock
Exchange Composite Tape on January 30, 1995.
[FN] Represents the maximum number of shares of Common Stock
issuable upon the conversion of $32,478,000 aggregate
principal amount of the Registrant's 6 1/4% Convertible
Subordinated Debentures due February 15, 2007 outstanding at
the close of business on January 31, 1995, exclusive of the
$5,000,000 principal amount thereof held by the Mark IV
Industries, Inc. and Subsidiaries Employees' Retirement
Income Fund.
- ---------------------
THIS REGISTRATION STATEMENT SHALL HEREAFTER BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A) OF
THE SECURITIES ACT OF 1933, SHALL DETERMINE.
- ---------------------------------------------------------------
<PAGE>
PROSPECTUS
2,260,125 SHARES
MARK IV
INDUSTRIES INC.
COMMON STOCK
On February 1, 1995, Mark IV Industries, Inc. ("Mark IV" or
the "Company") called for redemption on February 16, 1995 (the
"Redemption Date") the $37,478,000 outstanding aggregate
principal amount of its 6 1/4% Convertible Subordinated
Debentures
due February 15, 2007 (the "Debentures") at a redemption price
per $1,000 principal amount of Debentures of $1,043.75, plus
accrued interest of $.17 from February 15, 1995 to the
Redemption Date, making a total of $1,043.92 payable for each
such $1,000 principal amount (the "Redemption Payment"). The
right to convert the Debentures into shares of Mark IV's Common
Stock, par value $.01 per share (the "Common Stock"), expires at
5:00 p.m., New York City time, on February 15, 1995 (the
"Conversion Expiration Date"). Thereafter, no further
conversion of Debentures may be made, and any Debentures not
duly surrendered for conversion prior to the close of business
on the Conversion Expiration Date or for redemption prior to the
close of business on the Redemption Date shall become due and
cease to accrue interest. The conversion price for the
Debentures is $14.37 per share of Common Stock.
The next interest payment date with respect to interest
accrued on the Debentures from August 15, 1994 is February 15,
1995 (the "Interest Payment Date") and the record date for such
payment is February 1, 1995 (the "Record Date"). Notwith-
standing Section 4.02 of the Indenture and Paragraph 9 of the
Debentures which require that Debentures surrendered for
conversion during the period between the Record Date and the
Interest Payment Date be accompanied by payment of an amount
equal to the interest payable by the Company with respect to
such Debentures on the Interest Payment Date, the Company has
waived such requirement and determined that DEBENTURES
SURRENDERED FOR CONVERSION DURING THE PERIOD COMMENCING
FEBRUARY 2, 1995 THROUGH THE CLOSE OF BUSINESS ON FEBRUARY 15,
1995 (THE CONVERSION EXPIRATION DATE) NEED NOT BE ACCOMPANIED BY
SUCH PAYMENT AND THAT THE HOLDERS OF RECORD ON THE RECORD DATE
OF THE DEBENTURES SO CONVERTED WILL BE ENTITLED TO RECEIVE AND
RETAIN THE INTEREST PAYABLE BY THE COMPANY ON THE INTEREST
PAYMENT DATE. No payment or adjustment in respect of dividends
paid on the Common Stock to holders of record on a date prior to
the date the Debentures are converted will be made upon
conversion of Debentures.
The Company has made arrangements with Bear, Stearns & Co.
Inc. (the "Purchaser") pursuant to which the Purchaser has
agreed, subject to certain conditions, to purchase from the
Company the shares of Common Stock that otherwise would have
been delivered upon conversion of Debentures (other than the
$5,000,000 principal amount thereof held by the Mark IV
Industries, Inc. and Subsidiaries Employees' Retirement Income
Fund (the "Pension Plan")) that are either (i) duly surrendered
for redemption on or prior to the Redemption Date or (ii) not
duly surrendered for conversion on or prior to the Conversion
Expiration Date or for redemption on or prior to the Redemption
Date. Such shares will be purchased for an aggregate purchase
price equal to the aggregate Redemption Payment for those
Debentures. The proceeds will be used by the Company to redeem
Debentures. The Purchaser may also purchase Debentures in the
open market or otherwise prior to the Conversion Expiration Date
and has agreed to surrender for conversion Debentures so
purchased by it and any additional Debentures beneficially owned
by it.
Subject to certain limitations prescribed by applicable
law, prior to and after the Redemption Date, the Purchaser may
offer Common Stock, including shares acquired through the
purchase and conversion of Debentures, directly to the public at
prices set from time to time by the Purchaser and to dealers at
such prices less a selling concession to be determined by the
Purchaser. Prior to the Redemption Date, each such price when
set will not exceed the greater of the last sale or current
asked price of the Common Stock on the New York Stock Exchange
(the "NYSE") plus a dealer's concession, and the offering price
will not be increased more than once in any calendar day. Sales
of Common Stock by the Purchaser may be made on the NYSE, in
block trades or in privately negotiated transactions. In
effecting such transactions, the Purchaser may realize profits
or losses independent of its compensation described under
"Standby Arrangements." Offers of shares by the Purchaser will
be subject to prior sale, to receipt and acceptance of shares by
it, and to approval of certain legal matters by counsel. The
Company has agreed to indemnify the Purchaser against, and to
provide contribution with respect to, certain liabilities,
including liabilities under the Securities Act of 1933, as
amended (the "Securities Act"). See "Standby Arrangements."
The Common Stock and the Debentures are listed on the NYSE.
On January 31, 1995, the last reported sale price of the Common
Stock on the NYSE Composite Tape was $19-1/4 per share.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
BEAR, STEARNS & CO. INC.
FEBRUARY 1, 1995
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE PURCHASER MAY
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN
THE MARKET PRICE OF THE COMMON STOCK OR THE DEBENTURES AT LEVELS
ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK
EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company with the
Commission can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549 and at the Commission's
regional offices located at Seven World Trade Center, New York,
New York 10048, and Suite 1400, Northwestern Atrium Center, 500
West Madison Street, Chicago, Illinois 60661. Copies of such
materials can be obtained from the Public Reference Section of
the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates. Such materials can also be
inspected at the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
The Company has filed with the Commission a Registration
Statement on Form S-3 under the Securities Act, with respect to
the securities offered hereby. This Prospectus does not contain
all of the information set forth in the Registration Statement,
certain parts of which have been omitted in accordance with the
rules and regulations of the Commission. For further
information with respect to the Company and the securities
offered hereby, reference is made to the Registration Statement,
including the exhibits filed as part thereof and otherwise
incorporated therein. Statements made in this Prospectus as to
the contents of any contract, agreement or other document
referred to are not necessarily complete; with respect to each
such contract, agreement or other document filed as an exhibit
to the Registration Statement, reference is made to such exhibit
for a more complete description of the matter involved, and each
such statement shall be deemed qualified in its entirety by such
reference. Copies of the Registration Statement and the
exhibits may be inspected, without charge, at the offices of the
Commission, or obtained at prescribed rates from the Public
Reference Section of the Commission at the address set forth
above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the
Commission by the Company pursuant to the Exchange Act are
incorporated by reference in this Prospectus and made a part
hereof: the Company's Annual Report on Form 10-K for the fiscal
year ended February 28, 1994, as amended by Amendment No. 1 on
Form 10-K/A; the Company's Quarterly Reports on Form 10-Q for
the fiscal quarters ended May 31, 1994, August 31, 1994 and
November 30, 1994; the Company's Current Reports on Form 8-K
dated November 9, 1994 and December 21, 1994; and the
description of the Company's Common Stock which is contained in
the Company's Registration Statement on Form 8-A, dated August
28, 1987, including any amendments or reports filed for the
purpose of updating such description.
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date hereof and prior to the termination of the Offering shall
be deemed to be incorporated by reference herein and to be a
part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed
document which is also incorporated or deemed to be incorporated
by reference herein modifies, supersedes or replaces such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
The Company will provide without charge to any person to
whom this Prospectus is delivered, upon written or oral requests
of such person, a copy of any or all of the documents which have
been incorporated
by reference in this Prospectus, other than exhibits to such
documents, unless such exhibits are specifically incorporated by
reference into the documents so incorporated. Requests for such
copies should be directed
to Investor Relations, Mark IV Industries, Inc., 501 John James
Audubon Parkway, P.O. Box 810, Amherst, New York 14226-0810
(telephone number: (716) 689-4972).
THE COMPANY
Mark IV is a diversified manufacturer of a broad range of
proprietary and other power and fluid transfer products and
systems which serve four markets: general industrial;
automotive aftermarket; automotive original equipment
manufacturers ("OEMs"); and infrastructure. Power and fluid
transfer products and systems accounted for 90.0% of Mark IV's
net sales in fiscal 1994 after giving pro forma effect to the
Company's recent acquisition of Purolator Products Company
("Purolator"). Mark IV is also a leading manufacturer of
professional audio products.
Many of Mark IV's products have a significant, and in
certain instances the leading, share of their respective
markets. Products manufactured by Mark IV principally serve
specialized needs in markets in which relatively few
manufacturers compete. These products are primarily sold
directly, and through independent distributors, to other
manufacturers and commercial users in the United States and
Europe and, to a lesser extent, in Canada, Latin America and the
Far East. Mark IV operates 72 manufacturing facilities and 52
distribution and sales locations and employs approximately
16,500 people in eighteen countries.
Mark IV's business strategy is focused on building its
power and fluid transfer business through internal growth,
continuation of cost control and quality improvement programs,
and selective strategic domestic and foreign acquisitions. The
Company's operating strategy emphasizes management for
continuous improvement, establishing co-operative programs with
customers to engineer, design and develop higher value added
systems in addition to individual products, and the introduction
of new, more cost effective and durable products.
In furtherance of these strategies, over the past five
years Mark IV has: (i) emphasized continuous product
development, with over 50.0% of its current sales worldwide
arising from the introduction of new products or products which
have been redesigned; (ii) significantly expanded its presence
in Western Europe through its June 1993 acquisition of Pirelli
Trasmissioni Industriali, S.p.A. ("PTI"), a leading
Italian-based manufacturer of power transmission products;
(iii) substantially increased its domestic production capacity
and strengthened its market position in the power steering and
garden hose markets through its fiscal 1991 acquisition of
Anchor Swan, a leading manufacturer of these and other products;
(iv) established distribution centers to serve markets in
Central and South America and the Pacific Rim, and acquired
manufacturing and distribution facilities in Mexico; and
(v) implemented cost savings and efficiency programs in its
Power and Fluid Transfer business segment which have contributed
to the improvement of the segment's operating income margins
from 7.0% in fiscal 1989 to 11.7% in fiscal 1994. Mark IV
believes that, having established an efficient global
manufacturing and distribution network, it is well positioned to
benefit from a continuation of strength in its domestic markets
and the increasing strength in its European and other foreign
markets.
RECENT DEVELOPMENTS
As part of the Company's strategic emphasis on its power
and fluid transfer business, in November 1994 Mark IV acquired
Purolator which is a leading manufacturer of filtration
products, including automotive oil, air and fuel filters;
residential and commercial heating, ventilating and
air-conditioning filters; high-technology liquid filtration
products; and specialized industrial filters and filtration
systems. The total cost of the acquisition was $286.3 million.
Purolator's filtration business complements the Company's fluid
transfer products since many of Purolator's products serve
customers in the same markets as the Company's other power and
fluid transfer products, such as certain industrial markets, the
automotive aftermarket and, to a much lesser extent, the
automotive OEM market. In addition, filters are generally an
integral part of most power and fluid transfer systems produced
by the Company. Accordingly, management believes that, as a
result of the acquisition of Purolator, the Company is better
positioned to provide a broader range of products to customers
in these markets. In particular, the acquisition of Purolator
will strengthen Mark IV's presence in the automotive aftermarket
since 61.5% of Purolator's $435.8 million of sales in 1993 were
made to customers in this market. Mark IV also believes that
its extensive domestic and European sales and distribution
network will provide opportunities for increased sales of
Purolator's products. It is also anticipated that significant
cost savings will result from the combined distribution of fluid
transfer and filtration products to customers and the
consolidation of Purolator's corporate functions.
The funds used to finance the acquisition of Purolator were
provided from borrowings under the Company's 1994 Credit
Agreement, which provides for term and revolving credit loans.
In December 1994, the Company completed an underwritten public
offering of 6,175,000 shares of Common Stock (the "1994
Offering"), the net proceeds from which, in the amount of
approximately $113 million, were used to repay indebtedness
outstanding under the revolving credit facility provided by the
1994 Credit Agreement. Under the terms of the 1994 Credit
Agreement, the amount of indebtedness so repaid under the
revolving credit facility may be reborrowed by the Company.
In January 1995, Standard & Poor's upgraded Mark IV's
subordinated debt rating from B+ to BB+ in view of the
improvement in its financial position resulting from the
consummation of the Purolator acquisition and the 1994 Offering
and the conversion in October 1994 of $76.7 million aggregate
principal amount of Debentures into approximately 5,340,000
shares of Common Stock.
USE OF PROCEEDS
There will be no proceeds to the Company from the issuance
of Common Stock upon conversion of Debentures by holders
thereof. The net proceeds from the sale of Common Stock to the
Purchaser pursuant to the standby arrangements described herein
will be used to effect the redemption of any Debentures not duly
surrendered for conversion. Any additional proceeds to the
Company as a result of profit sharing upon resales of shares of
Common Stock acquired by the Purchaser pursuant to the standby
arrangements described herein will be added to the Company's
working capital and used for general business purposes. See
"Standby Arrangements."
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY
The Common Stock is currently traded on the NYSE. The
following table sets forth, for each quarter of the indicated
fiscal years of the Company ended the last day of February of
each year, the high and low closing sale prices per share of
Common Stock as reported on the NYSE Composite Tape. All
amounts have been adjusted for the 5% stock dividend paid in
April 1994.
<TABLE>
<CAPTION>
High Low Dividends
Per Share
------ ------- -----------
<S> <C> <C> <C>
FISCAL 1993
First Quarter . . . . . . . . . . . . $14 $11 7/8 $0.020
Second Quarter . . . . . . . . . . . 13 3/8 11 1/2 0.020
Third Quarter . . . . . . . . . . . . 14 11 1/8 0.020
Fourth Quarter . . . . . . . . . . . 17 5/8 13 5/8 0.024
FISCAL 1994
First Quarter . . . . . . . . . . . . 18 3/4 15 5/8 0.024
Second Quarter . . . . . . . . . . . 22 18 7/8 0.024
Third Quarter . . . . . . . . . . . . 24 1/2 18 0.024
Fourth Quarter . . . . . . . . . . . 20 17 1/8 0.026
FISCAL 1995
First Quarter . . . . . . . . . . . . 19 15 3/4 0.0275
Second Quarter . . . . . . . . . . . 20 7/8 18 0.0275
Third Quarter . . . . . . . . . . . . 23 20 1/4 0.0275
Fourth Quarter
(through January 31, 1995) . . . 20 1/4 18 1/2 --
</TABLE>
On January 31, 1995, the closing sale price of the Common
Stock as reported on the NYSE Composite Tape was $19-1/4. As of
January 27, 1995, there were approximately 2,600 holders of
record of the Common Stock.
Mark IV intends to continue to pay quarterly cash dividends
on its Common Stock, subject to future results of operations and
other relevant factors. Pursuant to the terms of the Company's
1994 Credit Agreement, the payment of dividends on Mark IV's
Common Stock is subject to certain limitations.
<PAGE>
CAPITALIZATION
The following table sets forth the unaudited consolidated
capitalization of the Company at November 30, 1994 and (i) as
adjusted to give effect to the 1994 Offering, the net proceeds
from which, in the amount of approximately $113 million, were
used to repay indebtedness outstanding under the revolving
credit facility provided by the 1994 Credit Agreement, and (ii)
as further adjusted to give effect to the retirement of the
Debentures, assuming all Debentures are converted into shares of
Common Stock.
<TABLE>
November 30, 1994
(Dollars in thousands)
--------------------------------------
As As further
Actual Adjusted Adjusted
---------- ----------- -----------
<S> <C> <C> <C>
Current maturities of long-term
debt<F1> . . . . . . . . . . . $ 6,100 $ 6,100 $ 6,100
========== ========== ==========
Long-term debt, excluding
current maturities<F1>:
Senior debt:
Credit Agreement . . . . . $421,000 $308,000 $308,000
Other . . . . . . . . . . . 55,200 55,200 55,200
---------- ----------- -----------
Total senior debt . . . . . 476,200 363,200 363,200
---------- ----------- -----------
Subordinated debt:
8-3/4% Senior Subordinated
Notes
due April 1, 2003 . . . . 258,000 258,000 258,000
6-1/4% Convertible Subordinated
Debentures due February 15, 2007 . . 37,500 37,500 -
---------- ----------- -----------
Total subordinated debt . 295,500 295,500 258,000
---------- ----------- -----------
Total long-term debt . . . 771,700 658,700 621,200
---------- ----------- -----------
Stockholders' equity:
Common Stock, $.01 par value:
100,000,000 shares authorized:
48,092,831 shares issued;
54,267,831 shares issued as
adjusted; and 56,875,903
shares issued as further
adjusted<F2> . . . . . . . 500 500 600
Additional paid-in capital . 338,400 451,400 488,000<F3>
Retained earnings . . . . . . 134,100 134,100 134,100
Foreign currency translation
adjustment . . . . . . . . . . (1,100) (1,100) (1,100)
---------- ----------- -----------
Total stockholders' equity 471,900 584,900 621,600
---------- ----------- -----------
Total capitalization . . $1,243,600 $1,243,600 $1,242,800
========== =========== ===========
</TABLE>
______________________
[FN] See Note 8 to the Company's audited Consolidated Financial
Statements and Note 6 to the Company's unaudited
Consolidated Financial Statements at November 30, 1994,
incorporated by reference herein, for interest rates and
other information regarding the Company's outstanding
indebtedness.
[FN] Excludes 1,337,816 shares reserved for issuance upon
exercise of outstanding employee stock options.
[FN] Includes adjustments for deferred charges relating to the
Debentures.
<PAGE>
SELECTED FINANCIAL INFORMATION
The following tables set forth selected consolidated
financial information of the Company for each of the five fiscal
years in the period ended February 28, 1994 derived from the
Company's audited consolidated financial statements and for the
nine months ended November 30, 1993 and 1994. Information for
the nine months ended November 30, 1993 and 1994 is derived from
the unaudited consolidated financial statements of the Company
but, in the opinion of management, includes all adjustments,
consisting only of normal recurring accruals, necessary for a
fair presentation. The results of operations for the nine-month
period ended November 30, 1994 are not necessarily indicative of
the results to be expected for the full year. These tables
should be read in conjunction with the Company's Consolidated
Financial Statements incorporated by reference herein.
<TABLE>
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
FOR THE
<CAPTION> NINE MONTHS ENDED
FOR THE YEAR ENDED THE LAST DAY OF FEBRUARY, NOVEMBER 30,
--------------------------------------------------- -------------------
1990 1991 1992 1993 1994<F1> 1993<F1> 1994<F2>
-------- -------- ----------- ---------- ---------- ---------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales............................... $672,700 $789,700 $1,004,300 $1,085,700 $1,244,200 $924,400 $1,118,300
-------- -------- ----------- ---------- ---------- ---------- ----------
Operating costs:
Cost of products sold.................. 419,000 492,800 641,900 698,800 803,500 597,700 730,200
Selling and administration............. 142,000 164,800 200,600 215,100 236,300 171,000 205,000
Research and development............... 17,000 20,600 24,900 26,100 30,900 23,300 24,500
Depreciation and amortization.......... 17,000 23,500 28,300 32,100 41,700 31,200 38,000
-------- -------- ----------- ---------- ---------- ---------- ----------
Total operating costs................... 595,000 701,700 895,700 972,100 1,112,400 823,200 997,700
-------- -------- ----------- ---------- ---------- ---------- ----------
Operating income........................ 77,700 88,000 108,600 113,600 131,800 101,200 120,600
Interest expense........................ 51,200 60,600 64,700 51,600 50,100 37,700 39,000
-------- -------- ----------- ---------- ---------- ---------- ----------
Income before gain (loss) on securities
transactions and provision for taxes... 26,500 27,400 43,900 62,000 81,700 63,500 81,600
Gain (loss) on securities transactions.. 5,800 1,000 (2,400) - - - -
-------- -------- ----------- ---------- ---------- ---------- ----------
Income before provision for taxes....... 32,300 28,400 41,500 62,000 81,700 63,500 81,600
Provision for income taxes.............. 12,400 10,800 14,700 22,900 30,600 24,000 31,300
-------- -------- ----------- ---------- ---------- ---------- ----------
Income from continuing operations<F3>... $19,900 $17,600 $26,800 $39,100 $51,100 $39,500 $50,300
======== ======== =========== ========== ========== ========== ==========
Fully-diluted income per share from
continuing operations:
Before securities transactions.......... $0.52 $0.59 $0.78 $0.87 $1.09 $0.85 $1.04
Gain (loss) on securities transactions.. 0.10 0.02 (0.04) - - - -
-------- -------- ----------- ---------- ---------- ---------- ----------
Total from continuing operations<F3>.... $0.62 $0.61 $0.74 $0.87 $1.09<F4> $0.85 $1.04<F4>
======== ======== =========== ========== ========== ========== ==========
Cash dividends per share................ $- $0.058 $0.066 $0.084 $0.098 $0.072 $0.0825
======== ======== =========== ========== ========== ========== ==========
Fully-diluted weighted average number of
shares outstanding...................... 36,300 33,400 38,400 50,300 50,700 50,700 51,000
</TABLE>
<TABLE>
<CAPTION>
AT THE LAST DAY OF FEBRUARY, AT
---------------------------------------------------- NOVEMBER 30,
1990 1991 1992 1993 1994 1994
---------- -------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working capital............................... $262,300 $345,100 $285,500 $275,400 $312,800 $388,200
Total assets.................................. 872,100 1,100,100 1,104,500 1,124,800 1,282,300 1,803,600
Long-term debt, excluding current maturities.. 544,200 717,600 525,400 497,100 567,200 771,700
Stockholders' equity.......................... 159,700 170,000 311,900 345,600 345,400 471,900
</TABLE>
__________________________
[FN] Includes the results of operations of the PTI business from
its June 1993 acquisition date.
[FN] Includes the results of operations of the Purolator
business from its November 4, 1994 acquisition date.
[FN] As a result of an extraordinary loss of $21,700,000 related
to the early extinguishment of debt, as well as a charge of
$26,000,000 to recognize the cumulative effect of adopting
Statement of Financial Accounting Standards ("SFAS") No.
106 related to post-retirement benefits, the Company's net
income for fiscal 1994 was $3,400,000 (or $0.15 per
fully-diluted share).
[FN] On a pro forma basis, fully-diluted income per share from
continuing operations for fiscal 1994 and the nine months
ended November 30, 1994 would have been $1.15 and $1.11,
respectively, assuming the following transactions had
occurred on March 1, 1993, the beginning of fiscal 1994,
with respect to the pro forma income per share from
continuing operations for fiscal 1994, and on March 1,
1994, the beginning of fiscal 1995, with respect to the pro
forma income per share from continuing operations for the
nine months ended November 30, 1994: (i) the consummation
of the acquisition of Purolator in November 1994 and the
borrowings under the 1994 Credit Agreement in connection
therewith; (ii) the conversion in October 1994 of
approximately $76.7 million aggregate principal amount of
Debentures into approximately 5,340,000 shares of
Common Stock at the conversion price of $14.37 per
share; (iii) the reduction of borrowings under the 1994
Credit Agreement with the net proceeds of approximately
$113 million from the 1994 Offering of 6,175,000 shares of
Common Stock at a public offering price of $19.00 per
share; and (iv) the retirement of the approximately
$37.5 million remaining aggregate principal amount of
Debentures, assuming all such Debentures are converted,
into approximately 2,600,000 shares of Common Stock at the
conversion price of $14.37 per share.
<PAGE>
STANDBY ARRANGEMENTS
The Company has entered into an agreement (the "Standby
Agreement") with Bear, Stearns & Co. Inc. (the "Purchaser")
pursuant to which the Purchaser has agreed, subject to certain
conditions, to purchase from the Company the shares of Common
Stock that otherwise would have been delivered upon conversion
of Debentures (other than $5,000,000 principal amount thereof
held by the Pension Plan) that are either (i) duly surrendered
for redemption on or prior to the Redemption Date or (ii) not
duly surrendered for conversion on or prior to the Conversion
Expiration Date or for redemption on or prior to the Redemption
Date. Such shares of Common Stock will be purchased by the
Purchaser for an aggregate purchase price equal to the aggregate
Redemption Payment for those Debentures.
The Purchaser may also purchase Debentures for its own
account in the open market or otherwise prior to the Conversion
Expiration Date and has agreed to surrender for conversion all
Debentures so purchased and any additional Debentures
beneficially owned. The Purchaser will not be permitted to
solicit conversions of Debentures.
A maximum of 2,260,125 shares of Common Stock is subject to
purchase under the Standby Agreement, which amount represents
the number of shares of Common Stock issuable upon conversion of
the $32,478,000 principal amount of Debentures outstanding as of
January 31, 1995, exclusive of the $5,000,000 principal amount
thereof held by the Pension Plan.
Subject to certain limitations prescribed by applicable
law, prior to and after the Redemption Date, the Purchaser may
offer Common Stock, including shares acquired through the
purchase and conversion of Debentures, directly to the public at
prices set from time to time by the Purchaser and to dealers at
such prices less a selling concession to be determined by the
Purchaser. Prior to the Redemption Date, each such price when
set will not exceed the greater of the last sale or current
asked price of the Common Stock on the NYSE plus a dealer's
concession, and the offering price will not be increased more
than once in any calendar day. Sales of Common Stock by the
Purchaser may be made on the NYSE, in block trades or in
privately negotiated transactions. In effecting such
transactions, the Purchaser may realize profits or losses
independent of its compensation described below. Offers of
shares by the Purchaser will be subject to prior sale, to
receipt and acceptance of shares by the Purchaser, and to
approval of certain legal matters by counsel.
The Company will pay the Purchaser a standby fee of
$200,000 plus an additional fee (the "Additional Fee") of $.50
per share for each share purchased pursuant to the Standby
Agreement in excess of 113,006 shares up to 339,019 shares. In
the event that in excess of 339,019 shares are purchased by the
Purchaser pursuant to the Standby Agreement, then the Additional
Fee will be $.75 per share and will be payable by the Company
with respect to all shares purchased. If the number of shares
purchased by the Purchaser pursuant to the Standby Agreement is
less than 180,810, the Purchaser will remit to the Company an
amount equal to 50% of the net profits realized by it from sales
of such shares. The Company has agreed to reimburse the
Purchaser for its expenses in connection with the transactions
contemplated by the Standby Agreement and to indemnify the
Purchaser against, and to provide contribution with respect to,
certain liabilities under the Securities Act.
Pursuant to the Standby Agreement, the Company has agreed
that if more than 339,019 shares of Common Stock are purchased
by the Purchaser pursuant to the Standby Agreement, the Company
will not issue, sell or otherwise dispose of any shares of
Common Stock, other than shares reserved for issuance as
described elsewhere in this Prospectus, during the period ending
March 31, 1995 without the prior written consent of the
Purchaser. In such event, the Company's directors and officers
have agreed that, during such period, they will not offer to
sell or otherwise dispose of more than an aggregate number of
shares of Common Stock equal to the difference between (i) the
aggregate number of shares of Common Stock sold by them from
December 9, 1994 to the date hereof and (ii) 250,000 shares,
without the prior written consent of the Purchaser.
The Purchaser has from time to time in recent years
performed various investment banking and other financial
advisory services for the Company, for which it has received
customary compensation. These services have included acting as
a managing underwriter of various public offerings of debt and
equity securities of the Company, including, but not limited to,
the 1994 Offering, and as financial advisor in connection with
various acquisitions and divestitures, including, but not
limited to, the acquisition of Purolator.
LEGAL MATTERS
The legality of the securities being offered hereby will be
passed upon for the Company by Stroock & Stroock & Lavan, New
York, New York, special counsel to the Company. Other legal
matters in connection with the offering will be passed upon by
such firm and by Lippes, Silverstein, Mathias & Wexler, Buffalo,
New York, counsel to the Company. Certain legal matters in
connection with the offering will be passed upon for the
Purchaser by Latham & Watkins, New York, New York.
Gerald S. Lippes, a partner of Lippes, Silverstein, Mathias
& Wexler, is general counsel to the Company, its Secretary and a
Director, and as of January 15, 1995 beneficially owned
1,702,610 shares of Common Stock (which represents approximately
3.1% of the outstanding shares and does not include 48,033
shares owned by the Lippes Family Charitable Foundation of which
Mr. Lippes is one of five directors and for which he disclaims
beneficial ownership). At January 15, 1995, other members of
such firm beneficially owned approximately 53,000 shares of
Common Stock.
EXPERTS
The consolidated balance sheets of Mark IV Industries, Inc.
and its subsidiaries at February 28, 1994 and 1993 and the
consolidated statements of income, stockholders' equity and cash
flows for each of the three years in the period ended
February 28, 1994, incorporated herein by reference to the
Company's Annual Report on Form 10-K for the fiscal year ended
February 28, 1994, as amended, have been incorporated by
reference herein in reliance on the report of Coopers & Lybrand,
independent accountants, given on the authority of that firm as
experts in accounting and auditing.
The consolidated balance sheets of Purolator Products
Company and its subsidiaries as of December 31, 1993 and 1992
and the consolidated statements of income, stockholders' equity
and cash flows for each of the three years in the period ended
December 31, 1993, incorporated herein by reference to the
Company's Current Report on Form 8-K dated November 9, 1994, to
the extent and for the periods indicated in their report, have
been audited by Arthur Andersen LLP, independent public
accountants, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in giving
said report. Reference is made to said report, which includes
an explanatory paragraph with respect to the change in the
method of accounting for post-retirement benefit costs other
than pensions, effective January 1, 1991, as discussed in Note 5
to Purolator's audited consolidated financial statements
incorporated by reference herein.
<PAGE>
- -------------------------------------- -------------------------
No dealer, salesman or any other
person has been authorized to give
any information or to make any
representation in connection with
this offering other than those 2,260,125 SHARES
contained in this Prospectus and, if
given or made, such information or
representation must not be relied
upon as having been authorized by the MARK IV INDUSTRIES, INC.
Company or the Purchaser. This
Prospectus does not constitute an
offer to sell or a solicitation of an
offer to buy any of these securities Common Stock
in any state to any person to whom it
is unlawful to make such offer or
solicitation in such state. The
delivery of this Prospectus at any
time does not imply that information
herein is correct as of any time
subsequent to its date.
--------------
---------------------- PROSPECTUS
TABLE OF CONTENTS --------------
Page
----
Available Information . . . . 2
Incorporation of Certain Documents
by Reference . . . . . . . 2
Bear, Stearns & Co. Inc.
The Company . . . . . . . . . 3
Recent Developments . . . . . 3
Use of Proceeds . . . . . . . 4
Price Range of Common Stock and
Dividend Policy . . . . . . 4 February 1, 1995
Capitalization . . . . . . . 6
Selected Financial Information 7
Standby Arrangements . . . . 8
Legal Matters . . . . . . . . 9
Experts . . . . . . . . . . . 10
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The fees and expenses in connection with the issuance and
distribution of the securities being registered hereunder, other
the Purchaser's standby fee, are estimated as follows:
Securities and Exchange Commission registration fee $ 15,247
New York Stock Exchange, Inc. listing fee 1,500
Printing expenses 1,500
Legal fees and expenses 30,000
Accounting fees and expenses 15,000
Blue Sky fees and expenses 10,000
Miscellaneous 6,753
Total $ 80,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") provides, in summary, that directors and
officers of Delaware corporations are entitled, under certain
circumstances, to be indemnified against all expenses and
liabilities (including attorneys' fees) incurred by them as a
result of suits brought against them in their capacity as a
director or officer, if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe their
conduct was unlawful; provided, that no indemnification may be
made against expenses in respect of any claim, issue or matter
as to which they shall have been adjudged to be liable to the
corporation, unless and only to the extent that the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in
view of all the circumstances of the case, they are fairly and
reasonably entitled to indemnity for such expenses which such
court shall deem proper. Any such indemnification may be made
by the corporation only as authorized in each specific case upon
a determination by the stockholders or disinterested directors
that indemnification is proper because the indemnitee has met
the applicable standard of conduct. Article Ninth of the
Company's Certificate of Incorporation entitles officers,
directors and controlling persons of the Company to
indemnification to the full extent permitted by Section 145 of
the DGCL, as the same may be supplemented or amended from time
to time.
Article Ninth of the Company's Certificate of Incorporation
was amended in August 1986 to provide that no director shall
have any personal liability to the Company or its stockholders
for any monetary damages for breach of fiduciary duty as a
director, provided that such provision does not limit or
eliminate the liability of any director (i) for breach of such
director's duty or loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the DGCL (involving certain unlawful
dividends or stock repurchases) or (iv) for any transaction from
which such director derived an improper personal benefit. The
provisions of such article do not limit or eliminate the
liability of any director for any act or omission occurring
prior to the effective time of such amendment.
Reference is made to Sections 9 and 10 of the Standby
Agreement included in Exhibit 1 hereto which provides certain
indemnification and contribution rights to the directors and
officers of the Company.
ITEM 16. EXHIBITS.
1 Form of Standby Purchase Agreement between the Company
and Bear, Stearns & Co. Inc.
2 Agreement and Plan of Merger, dated as of October 3,
1994, among the Company, Mark IV
Acquisition Corp. and Purolator Products Company
(incorporated by reference to Exhibit (c)(1) to
the Company's Tender Offer Statement on Schedule
14D-1 dated October 7, 1994).
4.1 Indenture dated as of February 13, 1992 between the
Company and Marine
Midland Bank, N.A., as Trustee (including the
form of 6-1/4% Convertible Subordinated Debentures
due February 15, 2007) (incorporated by reference
to Exhibit 4.1 to the Company's Current Report on
Form 8-K dated February 13, 1992).
4.2 Form of Indenture dated as of March 15, 1993 between
the Company and Citibank, N.A. as Trustee (including
the form of 8-3/4% Senior Subordinated Notes due
April 1, 2003) (incorporated by reference to Exhibit
4.1 to the Company's Current Report on Form 8-K
dated March 29, 1993).
5 Opinion of Stroock & Stroock & Lavan as to the
legality of the Shares.
23.1 Consent of Stroock & Stroock & Lavan (included in
Exhibit 5).
23.2 Consent of Coopers & Lybrand LLP.
23.3 Consent of Arthur Andersen LLP.
24 Powers of attorney (included on p. II-4 of the
Registration Statement).
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement;
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in
the information set forth in the registration
statement;
(iii) To include any material information
with respect to the plan of distribution not
previously disclosed in the registration statement or
any material change to such information in the
registration statement;
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(4) If the Registrant is a foreign private issuer, to
file a post-effective amendment to the registration
statement to include any financial statements required by
Rule 3-19 of Regulation S-X at the start of any delayed
offering or throughout a continuous offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under
the Securities Act, the information omitted from the form
of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of
the time it was declared effective.
(2) For the purpose of determining any liability
under the Securities Act, each post-effective amendment
that contains a form of prospectus shall be deemed to be a
new registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(d) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the Town of Amherst, State of New York, on February 1, 1995.
MARK IV INDUSTRIES, INC.
By /s/ WILLIAM P. MONTAGUE
William P. Montague
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Sal H. Alfiero,
Clement R. Arrison, William P. Montague, Gerald S. Lippes, John
J. Byrne and Richard L. Grenolds, and each of them, his true and
lawful attorneys-in-fact and agents with full power of
substitution and resubstitution for him and in his name, place
and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) of and
supplements to this Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto such attorneys-in-fact and agents and each of them full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises, to all intents and purposes and as fully as they might
or could do in person, hereby ratifying and confirming all that
such attorneys-in-fact and agents, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicate
<TABLE>
<CAPTION>
Signature Title Date
- ---------------------- ------------------------------- ----------------
<S> <C> <C>
/s/ SAL H. ALFIERO Chairman of the Board and Chief February 1, 1995
Sal H. Alfiero Executive Officer
/s/ CLEMENT R. ARRISON President and Director and Chief February 1, 1995
Clement R. Arrison Operating Officer
/s/ WILLIAM P. MONTAGUE Executive Vice President and February 1, 1995
William P. Montague Chief Financial Officer
/s/ GERALD S. LIPPES Secretary and Director February 1, 1995
Gerald S. Lippes
/s/ FREDERIC L. COOK Senior Vice President -- February 1, 1995
Frederic L. Cook Administration
/s/ JOHN J. BYRNE Vice President -- Finance February 1, 1995
John J. Byrne
/s/ RICHARD L. GRENOLDS Vice President and Chief February 1, 1995
Richard L. Grenolds Accounting Officer
------------------ Director
Joseph G. Donohoo
/s/ HERBERT ROTH, JR. Director February 1, 1995
Herbert Roth, Jr.
</TABLE>
<TABLE>
EXHIBIT INDEX
<CAPTION>
Exhibit
No. DESCRIPTION
PAGE NO.
- ------ ------------------------------------------------------
- --------
<S> <C>
<C>
1 Form of Standby Purchase Agreement between the Company
and Bear, Stearns & Co. Inc.
2 Agreement and Plan of Merger, dated as of October 3,
1994, among the Company, Mark IV Acquisition Corp. and
Purolator Products Company (incorporated by reference
to Exhibit (c)(1) to the Company's Tender Offer
Statement on Schedule 14D-1 dated October 7, 1994).
4.1 Indenture dated as of February 13, 1992 between the
Company and Marine Midland Bank, N.A., as Trustee
(including the form of 6-1/4% Convertible Subordinated
Debentures due February 15, 2007) (incorporated by
reference to Exhibit 4.1 to the Company's
Current Report on Form 8-K dated February 13, 1992).
4.2 Form of Indenture dated as of March 15, 1993 between
the Company and Citibank, N.A. as Trustee (including
the form of 8-3/4% Senior Subordinated Notes due
April 1, 2003) (incorporated by reference to
Exhibit 4.1 to the Company's Current Report on
Form 8-K dated March 29, 1993).
5 Opinion of Stroock & Stroock & Lavan as to the
legality of the Shares.
23.1 Consent of Stroock & Stroock & Lavan (included in
Exhibit 5).
23.2 Consent of Coopers & Lybrand LLP.
23.3 Consent of Arthur Andersen LLP.
24 Powers of attorney (included on p. II-4 of the
Registration Statement).
</TABLE>
Exhibit 1
MARK IV INDUSTRIES, INC.
STANDBY PURCHASE AGREEMENT
February 1, 1995
New York, New York
BEAR, STEARNS & CO. INC.
245 Park Avenue
New York, New York 10167
Dear Sirs:
Mark IV Industries, Inc., a Delaware corporation (the
"Company"), proposes to redeem on February 16, 1995 (the
"Redemption Date") all of its outstanding 6-*% Convertible
Subordinated Debentures due February 15, 2007 (the "Debentures")
at a redemption price (the "Redemption Price") per $1,000
principal amount of Debentures of $1,043.75, plus accrued
interest of $.17 from February 15, 1995, and will cause
requisite notice of such redemption to be duly given. The
Debentures are convertible into shares of the Company's common
stock, $.01 par value (the "Common Stock"), at a conversion
price of $14.37 per share of Common Stock. The right to convert
the Debentures into shares of Common Stock will terminate on the
Conversion Expiration Date (as defined below).
To assure the availability of funds to effect the
contemplated redemption of the Debentures, the Company desires
to make arrangements pursuant to which you would purchase from
the Company the shares of Common Stock (hereafter, the "Shares")
that would otherwise have been issuable upon conversion of those
Debentures that (i) are surrendered for redemption on or prior
to the close of business on the Redemption Date or (ii) are not
surrendered for conversion on or prior to the close of business
on February 15, 1995 (the "Conversion Expiration Date") or
surrendered for redemption on or prior to the close of business
on the Redemption Date, such purchase to be made for an
aggregate price equal to the aggregate Redemption Price of those
Debentures. The Company hereby confirms its agreement with you
with respect to those arrangements.
1. Sale and Purchase of Shares.
On the basis of the representations, warranties and
agreements of the Company contained herein, but subject to the
terms and conditions herein set forth, you agree to purchase the
Shares, and the Company agrees to issue, sell and deliver the
Shares to you, at and for a price (the "Purchase Price") of
$15.01 per Share.
2. Payment and Delivery.
No later than 5:30 p.m. New York City time, on
the Conversion Expiration Date, the Company shall give to you
written or telegraphic notice of the aggregate principal amount
of Debentures not theretofore duly surrendered for conversion as
described above. No later than 12:00 noon, New York City time,
on the Redemption Date, you shall remit to the Company or, at
the Company's prior written direction, to Marine Midland Bank
("Marine Midland") as Trustee under the Indenture, dated as of
February 13, 1992, relating to the Debentures (the "Indenture"),
for the account of the Company, by certified or official bank
check payable in New York Clearing House (next day) funds, a sum
equal to the aggregate Redemption Price of the Debentures
specified in the Company's notice referred to in the preceding
sentence, which sum shall be the aggregate Purchase Price of the
Shares to be purchased by you pursuant to this Agreement.
Simultaneously with such payment, the Company shall deliver to
you, at your offices, 245 Park Avenue, New York, New York 10167,
or at such other location as shall be mutually acceptable to the
Company and you, certificates evidencing the Shares. The date
and time of such payment and delivery are herein called the
"Closing Date" and may be changed by agreement between you and
the Company. Certificates representing the shares shall be
registered in such name or names and shall be in such
denominations as you may request in a written notice to the
Company at least two business days prior to the Closing Date.
At the Company's request given not less than two business days
prior to the Redemption Date, you will make such payment of the
aggregate Purchase Price in immediately available funds, in
which event the Company shall reimburse you for the incremental
cost of such funds at the then prevailing federal funds rate
plus 25 basis points.
3. Resale of Shares; Open Market Transactions;
Solicitations.
(a) The Company understands that you intend to
resell the Shares from time to time at prices prevailing in
the open market, as set forth in the Prospectus (as defined
in Section 5(a) hereof), and confirms that you and dealers
selected by you have been authorized by the Company to
distribute the Prospectus in connection with such resales.
You agree to remit to the Company an amount equal to 50% of
the excess of (i) the aggregate net proceeds realized by
you in respect of sales of Shares purchased by you from the
Company pursuant to this Agreement over (ii) the Purchase
Price of such shares, but only if the number of Shares
purchased by you on the Redemption Date pursuant to this
Agreement is fewer than 180,820 Shares. Settlement of the
profit sharing arrangement set forth in this paragraph
shall occur as soon as reasonably practicable after the
final disposition by you of all Shares purchased by you
pursuant to this Agreement.
(b) The Company acknowledges that it is aware
that, until the close of business on the Conversion
Expiration Date, you may (but shall have no obligation to)
purchase Debentures, in the open market or otherwise, in
such amounts and at such prices you may deem advisable.
You agree to present for conversion and to convert on or
prior to the close of business on the Conversion Expiration
Date any Debentures so acquired and any additional
Debentures beneficially owned by you. Shares of Common
Stock issued to you on conversion of Debentures may be sold
by you at any time or from time to time. The Company
further acknowledges that it is aware that you may purchase
or sell shares of Common Stock for long or short account on
the New York Stock Exchange or otherwise, at such times and
prices and on such terms as you deem advisable, and that
such purchases or sales, if commenced, may be discontinued
at any time.
(c) You agree that you will not solicit
conversions of Debentures by the holders thereof. The
Company has not paid or given, and will not pay or give,
directly or indirectly, any commission or other
remuneration for soliciting conversions of Debentures into
Common Stock.
4. Compensation.
As full compensation to you for your commitments
hereunder, the Company shall pay to you (i) on the date hereof,
the aggregate sum of $200,000 (the "Standby Commitment Fee"),
and (ii) on the Closing Date, a further sum (the "Take-up Fee")
as follows:
(a) If you purchase up to 113,006 Shares, no Take-up
Fee shall be payable.
(b) If you purchase in excess of 113,006 Shares to a
maximum of 339,019 Shares, a Take-up Fee of $.50
per Share shall be payable for each Share
purchased in excess of 113,006 Shares.
(c) If you purchase in excess of 339,019 Shares, a
Take-up Fee of $.75 per Share shall be payable
for each Share (including the initial 339,019
Shares) purchased.
All such fees shall be payable in New York Clearing House (next
day) funds. You shall have the right, in lieu of receiving
payment of the Take-up Fee from the Company, to deduct an amount
equal to the aggregate Take-up Fee from the aggregate purchase
price of the Shares purchased by you on the Closing Date.
5. Representations and Warranties of the Company.
The Company represents and warrants to you that:
(a) The Company has prepared and promptly
following the execution of this Agreement will file with
the Securities and Exchange Commission (the "Commission"),
pursuant to the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations promulgated by the
Commission thereunder (the "Regulations"), a registration
statement on Form S-3, including a prospectus, covering the
maximum number of shares of Common Stock that could
constitute the Shares. As used in this Agreement, (i) the
term "Effective Date" means the date that the registration
statement hereinabove referred to is declared effective by
the Commission, (ii) the term "Registration Statement"
means such registration statement including all financial
statements, schedules and exhibits, and (iii) the term
"Prospectus" means the form of final prospectus relating to
the Shares first filed with the Commission pursuant to Rule
424(b) of the Regulations or, if no filing pursuant to Rule
424(b) is required, the form of final prospectus included
in the Registration Statement at the Effective Date. Any
reference herein to the Registration Statement, or the
Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on
or before the Effective Date or the date of the Prospectus,
as the case may be.
(b) When the Registration Statement shall become
effective, when the Prospectus is first filed with the
Commission pursuant to Rule 424(b) of the Regulations, when
any supplement to or amendment of the Prospectus is filed
with the Commission, and at the Closing Date, the
Registration Statement and the Prospectus and any
amendments thereof and supplements thereto will comply in
all material respects with the applicable provisions of the
Act and the Regulations, and will not contain an untrue
statement of a material fact and will not omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading. No
representation and warranty is made in this subsection (b),
however, with respect to any information contained in or
omitted from the Registration Statement or the Prospectus
or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in
writing to the Company by you expressly for use therein
with reference to you. The documents incorporated by
reference in the Registration Statement and the Prospectus,
when they were first filed with the Commission (or, if an
amendment with respect to any such document was filed, when
such amendment was filed with the Commission), complied in
all material respects with the applicable provisions of the
Exchange Act and the rules and regulations of the
Commission thereunder; and any further document so filed
and incorporated by reference will, when they are filed
with the Commission, comply in all material respects with
the applicable provisions of the Exchange Act and the rules
and regulations of the Commission thereunder; none of such
filed documents when they were so filed (or, if an
amendment with respect thereto was filed, when such
amendment was filed), contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
made therein, in light of the circumstances in which they
were made, not misleading; and no such further document,
when it is filed with the Commission, will contain an
untrue statement of a material fact required to be stated
therein or necessary to make the statements made therein,
in light of the circumstances under which they were made,
not misleading.
(c) Coopers & Lybrand LLP and Arthur Andersen
LLP, whose reports are filed with the Commission and
incorporated by reference in and made a part of the
Registration Statement, are each independent public
accountants with regard to the Company and Purolator
Products Company, a Delaware corporation ("Purolator"),
respectively, as required by the Act and the Regulations.
(d) Subsequent to the respective dates as of
which information is given in the Registration Statement,
except as set forth in the Registration Statement, there
has not been any material adverse change in the business,
prospects, properties, operations, condition (financial or
other) or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, and since
the date of the latest balance sheet included or
incorporated by reference in the Registration Statement,
neither the Company nor any of its subsidiaries has
incurred or undertaken any liabilities or obligations,
direct or contingent, which are material to the Company and
its subsidiaries taken as a whole, except for liabilities
or obligations which were incurred or undertaken in the
ordinary course of business or are reflected in the
Registration Statement.
(e) This Agreement has been duly and validly
authorized, executed and delivered by the Company and is a
valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to
the extent that (i) rights to indemnity or contribution
hereunder may be limited by Federal or state securities
laws or the public policy underlying such laws, (ii) such
enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights
generally, and (iii) the remedy of specific performance and
injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
(f) The execution, delivery, and performance of
this Agreement and the consummation of the transactions
contemplated hereby, will not (i) conflict with or result
in a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or
lapse of time, or both, would constitute a default) or
require consent under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its
subsidiaries, pursuant to the terms of any agreement,
instrument, franchise, license or permit to which the
Company or any of its subsidiaries is a party or by which
any of such corporations or their respective properties or
assets may be bound (other than those as to which requisite
waivers or consents have been obtained by the Company) or
(ii) violate or conflict with any provision of the
certificate of incorporation, by-laws, or equivalent
instruments of the Company or any of its subsidiaries or
any judgment, decree, order, statute, rule or regulation of
any court or any public, governmental or regulatory agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or
assets. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of
or with any court or any public, governmental or regulatory
agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their respective properties
or assets is required for the execution, delivery and
performance of this Agreement, and the consummation of the
transactions contemplated hereby, including without
limitation the issuance, sale and delivery of the Shares to
be issued, sold and delivered by the Company hereunder,
except the registration under the Act of the Shares and
such consents, approvals, authorizations, orders,
registrations, filings, qualifications, licenses and
permits as may be required under the state securities or
"Blue Sky" laws in connection with the distribution of the
Shares by you.
(g) All of the currently outstanding shares of
Common Stock are duly and validly authorized and issued,
are fully paid and nonassessable and were not issued in
violation of or subject to any preemptive rights. The
Shares have been duly and validly authorized and, when
issued and delivered in accordance with this Agreement,
will have been duly and validly issued and delivered, and
will be fully paid and nonassessable, and will not have
been issued in violation of or subject to any preemptive
rights. The Company had, at November 30, 1994, an
authorized and outstanding capitalization as set forth in
the Registration Statement and as shall be set forth in the
Prospectus. The Common Stock conforms to the description
thereof set forth in, or incorporated by reference into,
the Registration Statement and as shall be set forth in, or
incorporated by reference into, the Prospectus.
(h) Each of the Company and its subsidiaries has
been duly organized and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation. Each of the Company and its
subsidiaries is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or
licensed) or the nature or conduct of its business makes
such qualification necessary, except for those failures to
be so qualified or in good standing which will not in the
aggregate have a material adverse effect on the Company and
its subsidiaries taken as a whole. Each of the Company and
its subsidiaries has all requisite power and authority, and
all necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses and permits of and
from all public, regulatory or governmental agencies and
bodies, to own, lease and operate its properties and
conduct its business as now being conducted and as
described in the Registration Statement and as shall be
described in the Prospectus, and no such consent, approval,
authorization, order, registration, qualification, license
or permit contains a materially burdensome restriction that
is not adequately disclosed in the Registration Statement
and that shall not be adequately disclosed in the
Prospectus.
(i) Except as described in the Prospectus, there
is no litigation or governmental proceeding to which the
Company or any of its subsidiaries is a party or to which
any property of the Company or any of its subsidiaries is
subject or, to the knowledge of the Company, contemplated
against the Company or any of its subsidiaries which would,
if adversely determined, result in any material adverse
change in the business, prospects, properties, operations,
condition (financial or other) or results of operations of
the Company and its subsidiaries taken as a whole or which
is required to be disclosed in the Registration Statement
and the Prospectus.
(j) The Company has not taken and will not take,
directly or indirectly, any action designed to cause or
result in, or which constitutes or which might reasonably
be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to
facilitate the sale or resale of the Shares.
(k) The consolidated financial statements of the
Company and Purolator, including the notes thereto, and
supporting schedules included in, or incorporated by
reference into, the Registration Statement and the
Prospectus present fairly the consolidated financial
positions of the Company and of Purolator as of the dates
indicated and the results of operations for the periods
specified; except as otherwise stated in the Registration
Statement, such financial statements have been prepared in
conformity with generally accepted accounting principles
applied on a consistent basis; and the supporting schedules
included in, or incorporated by reference into, the
Registration Statement present fairly the information
required to be stated therein.
(l) Except as described in the Prospectus, no
holder of securities of the Company has any rights to the
registration of securities of the Company because of the
filing of the Registration Statement or otherwise in
connection with the sale of the Shares contemplated hereby.
(m) The Company is not, and upon consummation of
the transactions contemplated hereby will not be, subject
to registration as an "investment company" under the
Investment Company Act of 1940, as amended.
(o) The Company meets all conditions for use of a
Form S-3 registration statement pursuant to the Act and the
Regulations.
6. Covenants of the Company.
The Company covenants and agrees with you that:
(a) The Company will use its best efforts to
cause the Registration Statement to become effective
promptly after the filing thereof with the Commission. The
Company will promptly advise you, and confirm such advice
in writing, (1) when the Registration Statement or any
post-effective amendment thereto has become effective, (2)
of the initiation or threatening of any proceedings for, or
receipt by the Company of any notice with respect to, the
suspension of the qualification of the Shares for sale in
any jurisdiction or the issuance of any order suspending
the effectiveness of the Registration Statement, and (3) of
receipt by the Company or any representative or attorney of
the Company of any other communications from the Commission
relating to the Company, the Registration Statement, any
preliminary prospectus, the Prospectus or the transactions
contemplated by this Agreement. The Company will make
every reasonable effort to prevent the issuance of an order
suspending the effectiveness of the Registration Statement
or any post-effective amendment thereto and, if any such
order is issued, to obtain its lifting as soon as possible.
The Company will not file any amendment to the Registration
Statement or any amendment of or supplement to the
Prospectus before or after the Effective Date to which you
shall reasonably object in writing after being timely
furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to
the Shares is required to be delivered under the Act any
event shall have occurred as a result of which the
Prospectus as then amended or supplemented includes an
untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to
make the statements therein, in the light of the
circumstances under which they were made, not misleading,
or if it shall be necessary at any time to amend or
supplement the Registration Statement or Prospectus to
comply with the Act or the Regulations, the Company will
(i) notify you promptly and prepare and file with the
Commission an appropriate amendment or supplement (in form
and substance satisfactory to you) which will correct such
statement or omission and (ii) use its best efforts to have
any necessary amendment to the Registration Statement
declared effective as soon as possible.
(c) The Company will promptly deliver to you two
manually-signed copies of the Registration Statement,
including exhibits and all documents incorporated by
reference therein and all amendments thereto, and to those
persons including yourself who you identify to the Company,
such number of copies of the Prospectus, the Registration
Statement, all amendments of and supplements to such
documents, if any, and all documents incorporated by
reference in the Registration Statement and Prospectus or
any amendment or supplement thereto, without exhibits, as
you may reasonably request.
(d) The Company will endeavor in good faith, in
cooperation with you, at or prior to the time the
Registration Statement becomes effective, to qualify the
Shares for offering and sale under the securities laws
relating to the offering or sale of the Shares of such
jurisdictions as you may designate and to maintain such
qualification in effect for so long as required for the
distribution thereof.
(e) The Company will make generally available
(within the meaning of Section 11(a) of the Act) to its
security holders and to you, as soon as practicable, an
earnings statement, covering a period of at least twelve
consecutive full calendar months commencing after the
effective date of the Registration Statement, that
satisfies the provisions of Section 11(a) of the Act and
Rule 158 of the Regulations.
(f) During a period of three (3) years from the
effective date of the Registration Statement, the Company
will furnish to you copies of (i) all reports to its
stockholders, and (ii) all reports, financial statements
and proxy or information statements filed by the Company
with the Commission or any national securities exchange.
(g) The Company will apply the proceeds from the
sale of the Shares as set forth under "Use of Proceeds" in
the Prospectus.
(h) The Company will use its best efforts to
cause the Shares to be listed on the New York Stock
Exchange.
(i) During a period of sixty (60) days from the
date of the Prospectus, in the event you purchase in excess
of 339,019 Shares, the Company will not, without your prior
written consent, issue, sell, offer or agree to sell, or
otherwise dispose of directly or indirectly, any Common
Stock (or any securities convertible into, exercisable for
or exchangeable for Common Stock), other than (i) the
Shares to be issued and sold hereunder, (ii) shares of
Common Stock issuable upon the exercise of currently
outstanding stock options, and (iii) shares of Common Stock
issuable under Purolator's 401(k) Plan. The Company will
obtain and deliver to you on or prior to the Closing Date
an undertaking of each of its officers and directors
providing that, if you purchase in excess of 339,019 Shares
hereunder such officers and directors shall have the right
to sell, collectively, up to an aggregate of the number of
shares of Common Stock representing the difference between
the aggregate number of shares of Common Stock sold by such
directors and officers from December 9, 1994 to the date
hereof and 250,000 Shares without your prior written
consent during such sixty (60) day period.
(k) The Company shall mail or cause to be mailed
on the date hereof the required notice of the redemption of
the Debentures on the Redemption Date (together with notice
of the other rights of the holders of the Debentures) in
the form heretofore submitted to you, shall furnish to you
such number of copies thereof as you reasonably may request
and shall cause an advertisement of such notice to be
published in such publications as the Company and you shall
select as soon as practicable after the date hereof.
(l) The Company will direct Marine Midland, as
Trustee and Conversion Agent for the Debentures, to advise
the Representative daily of the aggregate principal amount
of Debentures (x) surrendered for conversion into Common
Stock and (y) surrendered for redemption, in each case
through the close of business on the immediately preceding
business day.
(m) The Company will (i) give you at least one
business day's prior written notice of the contents of any
press release or other public announcement it intends to
issue on or prior to the Conversion Expiration Date and
(ii) consider in good faith any comments you may have
concerning the timing and content of such press release or
other public announcement.
7. Payment of Expenses.
Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated,
the Company hereby agrees to pay all costs and expenses incident
to the performance of the obligations of the Company hereunder,
including those in connection with (i) preparing, printing,
duplicating, filing and distributing the Registration Statement,
as originally filed and all amendments thereto (including all
exhibits thereto), the Prospectus and any amendments thereof or
supplements thereto, and all other documents related to the
public offering of the Shares (including those supplied to you
in quantities as hereinabove stated), (ii) the issuance and
delivery of the Shares to you (including any transfer or other
taxes payable thereon), (iii) the qualification of the Shares
under state and foreign securities or Blue Sky laws, including
the fees and disbursements of your counsel in relation thereto
and (iv) listing the Shares on the New York Stock Exchange. In
addition, the Company shall reimburse you for your out-of-pocket
expenses incurred in connection with this Agreement and the
consummation of the transactions contemplated hereby, including
the fees and disbursements of your counsel.
8. Conditions of Your Obligations.
Your obligations to purchase and pay for the
Shares as provided herein shall be subject to the accuracy of
the representations and warranties of the Company herein
contained as of the date hereof and as of the Closing Date, to
the absence from any certificates, opinions, written statements
or letters furnished pursuant to this Section 8 to you or to
Latham & Watkins ("your counsel"), of any misstatement or
omission, to the performance by the Company of its obligations
hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become
effective not later than 5:30 P.M., New York City time, on
the date of this Agreement or at such later time and date
as shall have been consented to in writing by you, no stop
order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof shall
have been issued and no proceedings therefor shall have
been initiated or threatened by the Commission.
(b) on the date hereof and on the Closing Date,
you shall have received the opinion of Lippes, Silverstein,
Mathias & Wexler, general counsel for the Company, dated
the date of its delivery, addressed to you and in form and
substance satisfactory to your counsel, to the effect that:
(i) Each of the Company and its material
subsidiaries has been duly organized and is validly
existing as a corporation in good standing under the
laws of its jurisdiction of incorporation. Each of
the Company and its material subsidiaries is duly
qualified and in good standing as a foreign
corporation in each jurisdiction in which the
character or location of its properties (owned, leased
or licensed) or the nature or conduct of its business
makes such qualification necessary, except for those
failures to be so qualified or in good standing which
will not in the aggregate have a material adverse
effect on the Company and its subsidiaries taken as a
whole. Each of the Company and its material
subsidiaries has all requisite corporate authority to
own, lease and license its respective properties and
conduct its business as now being conducted and as
described in the Registration Statement and the
Prospectus. Except as set forth in the Registration
Statement, all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly
and validly issued and is fully paid and nonassessable
and free of preemptive rights and, to the best
knowledge of such counsel, is owned directly or
indirectly by the Company, free and clear of any lien,
encumbrance, claim, security interest, restriction on
transfer, stockholders' agreement, voting trust or
other defect of title whatsoever, except insofar as
such capital stock is pledged pursuant to the terms of
the Credit and Guarantee Agreement, dated as of
November 2, 1994, among the Company, certain
subsidiaries of the Company, and certain banks and
other financial institutions.
(ii) The Company has authorized capital
stock as set forth in the Registration Statement and
the Prospectus. All of the outstanding shares of
Common Stock are duly and validly authorized and
issued, are fully paid and nonassessable and were not
issued in violation of or subject to any preemptive
rights. The Shares to be delivered on the Closing
Date have been duly and validly authorized and, when
delivered in accordance with this Agreement, will be
duly and validly issued and outstanding, fully paid
and nonassessable and will not have been issued in
violation of or subject to any preemptive rights. The
Common Stock conforms in all material respects to the
description thereof contained in or incorporated by
reference into the Registration Statement and the
Prospectus.
(iii) The Common Stock currently
outstanding is listed on the New York Stock Exchange,
and the Shares will be duly authorized for listing on
the New York Stock Exchange, subject to official
notice of issuance.
(iv) This Agreement has been duly and
validly authorized, executed and delivered by the
Company and is a valid and binding obligation of the
Company.
(v) To such counsel's knowledge (without
any investigation other than inquiries of officers of
the Company), there is no litigation or governmental
or other action, suit, proceeding or investigation
before any court or before or by any public,
regulatory or governmental agency or body pending or
threatened against, or involving the properties or
business of, the Company or any of its material
subsidiaries, which, if resolved against the Company
or such subsidiary, individually or, to the extent
involving related claims or issues, in the aggregate,
is of a character required to be disclosed in the
Registration Statement and the Prospectus which has
not been properly disclosed therein; and to such
counsel's knowledge (without any investigation other
than inquiries of officers of the Company), there is
no contract or document concerning the Company or any
of its material subsidiaries of a character required
to be described in the Registration Statement and the
Prospectus or to be filed as an exhibit to the
Registration Statement, which is not so described or
filed.
(vi) To such counsel's knowledge, no order
directed to any document incorporated by reference in
the Prospectus has been issued by the Commission and
no challenge has been made by the Commission to the
accuracy or adequacy of any such document.
(vii) The execution, delivery and
performance of this Agreement, and the consummation of
the transactions contemplated hereby by the Company,
including without limitation the issuance, sale and
delivery of the Shares, will not (A) conflict with or
result in a breach of any of the terms and provisions
of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a
default) or require consent under, or result in the
creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company
or any of its material subsidiaries pursuant to the
terms of any agreement, instrument, franchise, license
or permit known to such counsel to which the Company
or any of its material subsidiaries is a party or by
which any of such corporations or their respective
properties or assets may be bound or (B) violate or
conflict with any provision of the certificate of
incorporation, by-laws or equivalent instruments of
the Company or any of its material subsidiaries, or,
to the best knowledge of such counsel, any judgment,
decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency
or body having jurisdiction over the Company or any of
its material subsidiaries or any of their respective
properties or assets. To the best of such counsel's
knowledge, no consent, approval, authorization, order,
registration, filing, qualification, license or permit
of or with any court or any public, governmental, or
regulatory agency or body having jurisdiction over the
Company or any of its material subsidiaries or any of
their respective properties or assets is required for
the execution, delivery and performance of this
Agreement, and the consummation of the transactions
contemplated hereby, including without limitation the
issuance, sale and delivery of the Shares, except for
(1) such as may be required under state and foreign
securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by you (as to
which such counsel need express no opinion), and (2)
such as have been made or obtained under the Act.
(viii) Such counsel has received no stop
order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto and
to the best knowledge of such counsel no proceedings
therefor have been initiated or threatened by the
Commission.
In addition, such counsel shall state that they have
participated in conferences with officers and other
representatives of the Company, representatives of the
independent certified public accountants of the Company and
yourselves at which the contents of the Registration Statement,
the Prospectus and any amendment thereof or supplement thereto
and related matters were discussed and, although such counsel
has not undertaken to investigate or verify independently, and
does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or any amendment
thereof or supplement thereto on the basis of the foregoing
(relying as to materiality to a large extent upon the opinions
of officers and other representatives of the Company) such
counsel has no reason to believe that either the Registration
Statement at the time it became effective (or any amendment
thereof made prior to the Closing Date, as of the date of such
amendment) contained an untrue statement of a material fact or
omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus as of the date thereof (or any amendment
thereof or supplement thereto made prior to the Closing Date, as
of the date of such amendment or supplement) contained an untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading (it being understood that such
counsel need express no belief or opinion with respect to the
financial statements and schedules and other financial and
statistical data included therein, and the exhibits to the
Registration Statement).
In rendering such opinion, such counsel may rely (A)
as to matters involving the application of laws other than the
laws of the United States and jurisdictions in which they are
admitted, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to your
counsel) of other counsel reasonably acceptable to your counsel,
familiar with the applicable laws; and (B) as to matters of
fact, to the extent they deem proper, on certificates of
responsible officers and other representatives of the Company,
certificates of public officials, and certificates or other
written statements of officers of departments of various
jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and its
subsidiaries, provided that copies of any such statements or
certificates shall be delivered to your counsel. The opinion of
such counsel for the Company shall state that the opinion of any
such other counsel is in form satisfactory to such counsel and,
in their opinion, you and they are justified in relying thereon.
For purposes of this section 8(b), a material subsidiary is any
single direct or indirect subsidiary of the Company that the
Company anticipates will generate more than 10% of gross sales
on a pro forma basis for the fiscal year 1995 after giving
effect to the acquisition of Purolator.
(c) On the date hereof and on the Closing Date,
you shall have received the opinion of Stroock & Stroock &
Lavan, special counsel for the Company, dated the date of
its delivery, addressed to you and in form and substance
satisfactory to your counsel, to the effect that:
(i) The Registration Statement and the
Prospectus and any amendments thereof or supplements
thereto (other than the financial statements, notes
thereto, and schedules and other financial and
statistical data included or incorporated by reference
therein, and the exhibits to the Registration
Statement, as to which no opinion need be rendered)
comply as to form in all material respects with the
requirements of the Act and the Regulations. The
documents filed under the Exchange Act and
incorporated by reference in the Registration
Statement and the Prospectus or any amendment thereof
or supplement thereto (other than the financial
statements, notes thereto, and schedules and other
financial and statistical data included or
incorporated by reference therein, as to which no
opinion need be rendered) comply as to form in all
material respects with the Exchange Act and the rules
and regulations of the Commission thereunder.
(ii) The Registration Statement is effective
under the Act, and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of
the Registration Statement or any post-effective
amendment thereto has been issued and no proceedings
therefor have been initiated or threatened by the
Commission.
(iii) The Common Stock conforms in all
material respects to the description thereof contained
in or incorporated by reference into the Registration
Statement and the Prospectus.
In addition, you shall have received the opinion of
such counsel to the effect set forth in clauses (ii) (other than
the second sentence thereof), (iv) and (v) of Section 8(b)
hereof. In addition, such counsel shall state that they have
participated in conferences with officers and other
representatives of the Company, representatives of the
independent certified public accountants of the Company and
yourselves at which the contents of the Registration Statement,
the Prospectus and any amendment thereof or supplement thereto
and related matters were discussed (the documents incorporated
by reference having been prepared and filed by the Company
without such counsel's participation) and, although such counsel
has not undertaken to investigate or verify independently, and
does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or any amendment
thereof or supplement thereto, (except as to matters referred to
in clause (iii)), on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of officers and
other representatives of the Company) such counsel has no reason
to believe that either the Registration Statement at the time it
became effective (or any amendment thereof made prior to the
Closing Date as of the date of such amendment) contained an
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus as
of the date thereof (or any amendment thereof or supplement
thereto made prior to the Closing Date as of the date of such
amendment or supplement) contained an untrue statement of a
material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express
no belief or opinion with respect to the financial statements
and schedules and other financial and statistical data included
therein, the documents incorporated by reference therein and the
exhibits to the Registration Statement).
In rendering such opinion, such counsel may state that
their opinion is limited to matters of Federal, Delaware
corporate and New York State law and such counsel may rely as to
matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company or upon certificates of
public officials, provided that copies of any such certificates
shall be delivered to your counsel.
(d) At the Closing Date you shall have received
a certificate of the Chairman and a Vice President of the
Company, dated the date of its delivery, to the effect that
the conditions set forth in Section 8(a) hereof have been
satisfied, that as of the date hereof and as of the date of
such certificate the representations and warranties of the
Company set forth in Section 5 hereof are accurate, and
that as of the date of such certificate the obligations of
the Company to be performed hereunder on or prior thereto
have been duly performed.
(e) At the time this Agreement is executed and
on the Closing Date you shall have received a letter from
Coopers & Lybrand LLP, independent public accountants for
the Company, dated the date of its delivery, addressed to
you, and in form and substance satisfactory to you, to the
effect that: (i) they are independent certified public
accountants with respect to the Company within the meaning
of the Act and the applicable Regulations and stating that
the answer to Item 10 of the Registration Statement is
correct insofar as it relates to them; (ii) in their
opinion, the financial statements and schedules of the
Company included and incorporated by reference in the
Registration Statement and the Prospectus and covered by
their opinion therein comply as to form in all material
respects with the applicable accounting requirements of the
Act and the Regulations and the Exchange Act and the
applicable published rules and regulations of the
Commission thereunder; (iii) on the basis of procedures
(but not an examination made in accordance with generally
accepted accounting principles) consisting of a reading of
the latest available unaudited interim consolidated
financial statements of the Company and its subsidiaries, a
reading of the minutes of meetings and consents of the
stockholders and boards of directors of the Company and its
subsidiaries and the committees of such boards subsequent
to February 28, 1994, inquiries of officers and other
employees of the Company and its subsidiaries who have
responsibility for financial and accounting matters of the
Company and its subsidiaries with respect to transactions
and events subsequent to February 28, 1994, and other
specified procedures and inquiries to a date not more than
five business days prior to the date of such letter,
nothing has come to their attention that would cause them
to believe that: (A) the unaudited consolidated financial
statements and schedules of the Company contained or
incorporated by reference in the Registration Statement and
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act, the Regulations and the Exchange Act and the
applicable published rules and regulations of the
Commission thereunder or that such unaudited consolidated
financial statements are not fairly presented in conformity
with generally accepted accounting principles, except to
the extent certain footnote disclosures have been omitted
in accordance with applicable rules of the Commission under
the Exchange Act, applied on a basis substantially
consistent with that of the audited consolidated financial
statements included and incorporated by reference in the
Registration Statement and the Prospectus, (B) with respect
to the period subsequent to November 30, 1994, there were,
as of the date of the most recent available monthly
consolidated financial statements of the Company and its
subsidiaries, if any, and as of a specified date not more
than five business days prior to the date of such letter,
any changes in the capital stock or long-term indebtedness
of the Company or any decrease in the net current assets or
stockholders' equity of the Company, in each case as
compared with the amounts shown in the most recent balance
sheet included and incorporated by reference in the
Prospectus, except for changes or decreases which the
Prospectus may disclose, have occurred or may occur or
which are set forth in such letter, or (C) that during the
period from December 1, 1994 to the date of the most recent
available monthly consolidated financial statements of the
Company and its subsidiaries, if any, and to a specified
date not more than five business days prior to the date of
such letter, there was any decrease, as compared with the
corresponding period in the prior fiscal year, in total
revenues, or total or per share net income, except for
decreases which the Prospectus may disclose have occurred
or may occur or which are set forth in such letter; and
(iv) stating that they have compared specific dollar
amounts, numbers of shares, percentages of revenues and
earnings, and other financial information pertaining to the
Company and its subsidiaries set forth in the Prospectus,
which have been specified by you prior to the date of this
Agreement, to the extent that such amounts, numbers,
percentages, and information may be derived from the
general accounting and financial records of the Company and
its subsidiaries or from schedules derived therefrom
furnished by the Company, and excluding any questions
requiring an interpretation by legal counsel, with the
results obtained from the application of specified
readings, inquiries, and other appropriate procedures
specified by you (which procedures do not constitute an
examination in accordance with generally accepted auditing
standards) set forth in such letter, and found them to be
in agreement.
(f) All proceedings taken in connection with the
sale of the Shares as herein contemplated shall be
satisfactory in form and substance to you and to your
counsel, and you shall have received from your counsel a
favorable opinion, dated as of the Closing Date with
respect to the issuance and sale of the Shares as you may
reasonably require, and the Company shall have furnished to
your counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(g) Prior to the Closing Date, the Company shall
have furnished to you such further information,
certificates and documents as you may reasonably request.
If any of the conditions specified in this Section 8
shall not have been fulfilled when and as required by this
Agreement, or if any of the certificates, opinions, written
statements or letters furnished to you or to your counsel
pursuant to this Section 8 shall not be in all material respects
reasonably satisfactory in form and substance to you and to your
counsel, all of your obligations hereunder may be canceled by
you at, or at any time prior to, the Closing Date. Notice of
such cancellation shall be given to the Company in writing, or
by telephone, telecopy, telex or telegraph, confirmed in
writing.
9. Indemnification.
(a) The Company agrees to indemnify and hold
harmless each of you and each person, if any, who controls
you within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, against any and all losses,
liabilities, claims, damages and expenses whatsoever
(including but not limited to attorneys' fees and any and
all expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation),
joint or several, to which you or any of them may become
subject under the Act, the Exchange Act or otherwise,
insofar as such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement or any amendment thereof, or the Prospectus, or
in any supplement thereto or amendment thereof, 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; provided, however, that the Company will not be
liable in any such case to the extent, but only to the
extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in
conformity with written information with reference to you
furnished to the Company by you expressly for use therein;
and provided further, that the Company shall not be liable
to you (or any person controlling you) under the indemnity
agreement in this Section 9(a) with respect to the
Prospectus, to the extent that any such loss, liability,
claim, damage or expense of you (or any person controlling
you) results from the fact that you sold Shares to a person
to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus
as then amended or supplemented (excluding documents
incorporated by reference) in any case where such delivery
is required by the Act if the Company has previously
furnished copies thereof to you and your loss, liability,
claim, damage or expense (or that of such person
controlling you) results from an untrue statement, alleged
untrue statement, omission or alleged omission of a
material fact contained in the Prospectus prior to such
amendment or supplement. This indemnity agreement will be
in addition to any liability which the Company may
otherwise have, including under this Agreement.
(b) You agree to indemnify and hold harmless the
Company, each of the directors of the Company, each of the
officers of the Company who shall have signed the
Registration Statement, and each other person, if any, who
controls the Company within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act, against any
and all losses, liabilities, claims, damages and expenses
whatsoever (including but not limited to attorneys' fees
and any and all expenses whatsoever incurred in
investigating, preparing or defending against any
litigation, commenced or threatened, or any claim
whatsoever and any and all amounts paid in settlement of
any claim or litigation), joint or several, to which the
Company or any of them may become subject under the Act,
the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment
thereof or the Prospectus or any amendment thereof or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the
extent, but only to the extent, that any such loss,
liability, claim, damage or expense arises out of or is
based upon any untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance
upon and in conformity with written information with
respect to you furnished to the Company by you expressly
for use therein; provided, however, that in no case shall
you be liable or responsible for any amount in excess of
the aggregate of the Standby Commitment Fee and the Take-up
Fee payable to you hereunder. This indemnity will be in
addition to any liability which you otherwise may have,
including under this Agreement.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of
the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability
which it may have under this Section 9 except to the extent
that it has been prejudiced in any material respect by such
failure. 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 it may
elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with
counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party
or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii)
the indemnifying parties shall not have employed counsel to
take charge of the defense of such action within a
reasonable time after notice of commencement of the action,
or (iii) such indemnified party or parties shall have
reasonably concluded that there may be defenses available
to it or them which are different from or additional to
those available to one or all of the indemnifying parties
(in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such
fees and expenses shall be borne by the indemnifying
parties. The indemnifying party under subsection (a) or
(b) above, shall only be liable for the legal expenses of
one counsel for all indemnified parties in each
jurisdiction in which any claim or action is brought;
provided, however, that the indemnifying party shall be
liable for separate counsel for any indemnified party in a
jurisdiction, if counsel to the indemnified parties shall
have reasonably concluded that there may be defenses
available to such indemnified party that are different from
or additional to those available to one or more of the
other indemnified parties and that separate counsel for
such indemnified party is prudent under the circumstances.
Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable
for any settlement of any claim or action effected without
its written consent; provided, however, that such consent
was not unreasonably withheld.
10. Contribution.
In order to provide for contribution in circumstances
in which the indemnification provided for in Section 9 is for
any reason held to be unavailable, the Company and you shall
contribute to the aggregate losses, claims, damages, liabilities
and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claims asserted, but
after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company, any
contribution received by the Company from persons, other than
you, who may also be liable for contribution, including persons
who control the Company within the meaning of Section 15 of the
Act or section 20(a) of the Exchange Act, officers of the
Company who signed the Registration Statement and directors of
the Company) to which the Company and you may be subject, in
such proportion as is appropriate to reflect the relative
benefits received by the Company and you from the transactions
contemplated hereby or, if such allocation is not permitted by
applicable law or indemnification is not available as a result
of the indemnifying party not having received notice as provided
in Section 9, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the
relative fault of the Company and you in connection with the
statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the
Company and you shall be deemed to be in the same proportion as
(x) the total proceeds from the sale of the Shares to you (net
of the aggregate of the Standby Commitment Fee and the Take-up
Fees but before deducting expenses) received by the Company
bears to (y) the aggregate of the Standby Commitment Fee and the
Take-up Fees received by you. The relative fault of the Company
and of you 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 or
you and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission. The Company and you agree that it would not be
just and equitable if contribution pursuant to this Section 10
were determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable
considerations referred to above. Notwithstanding the
provisions of this Section 10, (i) in no case shall you be
required to contribute any amount in excess of the amount by
which the aggregate of the Standby Commitment Fee and the Take-
up Fees applicable to the Shares purchased by you pursuant to
this Agreement exceeds the amount of any damages which you have
otherwise been required to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission, and
(ii) 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. For purposes of this Section 10,
each person, if any, who controls you within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act shall
have the same rights to contribution as you, and each person, if
any, who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, each officer of
the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i)
and (ii) of this Section 10. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party
or parties under this Section 10, notify such party or parties
from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation
it or they may have under this Section 8 or otherwise. No party
shall be liable for contribution with respect to any action or
claim settled without its written consent; provided, however,
that such written consent was not unreasonably withheld.
11. Supplied Information.
The Company acknowledges that the statements with
respect to the arrangements with you set forth on the fourth
paragraph of the cover page of the Prospectus and under the
caption "Standby Arrangements" in the Prospectus constitute the
only information furnished in writing by you expressly for use
in the Registration Statement.
12. Survival of Representations and Agreements.
All representations, warranties and agreements of the
Company and you contained in this Agreement, including the
indemnity agreements contained in Section 9 hereof and the
contribution agreements contained in Section 10 hereof, shall
remain operative and in full force and effect regardless of any
investigation made by you or any controlling person of you or by
or on behalf of the Company, any of its officers and directors
or any controlling person thereof, and shall survive delivery of
and payment for the Shares to and by you. The representations
contained in Section 5 hereof and the agreements contained in
Sections 7, 9 and 10 hereof shall survive the termination of
this Agreement, including pursuant to Section 13 hereof.
13. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective when you
and the Company shall have received notification of the
effectiveness of the Registration Statement. Until this
Agreement becomes effective as aforesaid, it may be
terminated by the Company by notifying you or by you by
notifying the Company.
(b) You shall have the right to terminate this
Agreement at any time prior to the Closing Date by notice
to the Company from you, without liability (other than with
respect to Sections 9 and 10) on your part to the Company
if, on or prior to such date, (i) the Company shall have
failed, refused or been unable to perform in any material
respect any agreement on its part to be performed
hereunder, (ii) any other condition of your obligations
hereunder as provided in Section 8 is not fulfilled when
and as required in any material respect, (iii) trading in
securities generally on the New York Stock Exchange shall
have been suspended or materially limited, or minimum
prices shall have been established on such exchange by the
Commission, or by such exchange or other regulatory body or
governmental authority having jurisdiction, (iv) a general
banking moratorium shall have been declared by Federal or
New York State authorities, (v) there is an outbreak or
escalation of armed hostilities involving the United States
on or after the date hereof, or if there has been a
declaration by the United States of a national emergency or
war, the effect of which shall be, in your judgment, to
make it inadvisable or impracticable to proceed with the
public offering or delivery of the Shares on the terms and
in the manner contemplated in the Prospectus, (vi) in your
reasonable opinion any material adverse change shall have
occurred since the respective dates as of which information
is given in the Registration Statement or the Prospectus in
the condition (financial or other) of the Company and its
subsidiaries taken as a whole, whether or not arising in
the ordinary course of business other than as set forth in
the Prospectus, or (vii) there shall have been such a
material adverse change in general economic, political or
financial conditions or if the effect of international
conditions on the financial markets in the United States
shall be such as, in your judgment, makes it inadvisable or
impracticable to proceed with the delivery of the Shares as
contemplated hereby.
(c) Any notice of termination pursuant to this
Section 13 shall be by telephone, telex, telecopy, or
telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to
any of the provisions hereof (otherwise than pursuant to
notification by you as provided in Section 13(a) or Section
13(b)), or if the sale of the Shares provided for herein is
not consummated because any condition to your obligations
set forth herein is not satisfied or because of any
refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision
hereof, the Company will, subject to your demand, reimburse
you for all out-of-pocket expenses (including the fees and
expenses of your counsel), incurred by you in connection
herewith.
14. Notices.
All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and,
if sent to you shall be mailed, physically delivered,
telecopied, telexed, or telegraphed and confirmed in writing to
Bear, Stearns & Co. Inc., 245 Park Avenue, New York, New York
10167, Attention: Corporate Finance Department; and if sent to
the Company, shall be mailed, delivered or telexed, telegraphed
or faxed and confirmed in writing to Mark IV Industries, Inc.,
501 John James Audubon Parkway, P.O. Box 810, Amherst, New York
14226, Attention: Chairman.
15. Parties.
This Agreement shall inure solely to the benefit of,
and shall be binding upon, you and the Company and the
controlling persons, directors, officers, employees and agents
referred to in Sections 9 and 10 hereof, and their respective
successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Agreement or any
provision contained herein. The term "successors and assigns"
shall not include a purchaser, in its capacity as such, of
Shares from you.
16. Construction.
This Agreement shall be construed in accordance with
the laws of the State of New York.
If the foregoing correctly sets forth the
understanding between you and the Company, please so indicate in
the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement between us.
Very truly yours,
MARK IV INDUSTRIES, INC.
By
----------------------
Accepted as of the date
first above written.
BEAR, STEARNS & CO. INC.
By
-----------------------------------
Name:
Title: Managing Director
<PAGE>
Exhibit 5
STROOCK & STROOCK & LAVAN
SEVEN HANOVER SQUARE
NEW YORK, NEW YORK 10004-2696
February 1, 1995
Mark IV Industries, Inc.
501 John James Audubon Parkway
P.O. Box 810
Amherst, New York 14226-0810
Gentlemen:
We have acted as counsel to Mark IV Industries, Inc., a Delaware
corporation (the "Company"), in connection with the preparation
and filing with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the
"Act"), of a Registration Statement on Form S-3 (the
"Registration Statement") relating to the proposed public
offering (the "Offering") of up to 2,260,125 shares (the
"Shares") of the Company's Common Stock, $.01 par value per
share, which may be sold to Bear, Stearns & Co. Inc. (the
"Standby Purchaser") pursuant to the terms of the Standby
Purchase Agreement between the Company and the Standby Purchaser
described in the Registration Statement.
As such counsel, we have examined copies of the Certificate of
Incorporation and By-Laws of the Company, each as amended to the
date hereof, the Registration Statement, and originals or copies
of such other corporate minutes, records, agreements and other
instruments of the Company, certificates of public officials and
other documents and have made such examinations of law, as we
have deemed necessary to form the basis for the opinion
hereinafter expressed. In our examination of such materials, we
have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals and the conformity
to original documents of all copies submitted to us. As to
various questions of fact material to such opinion, we have
relied, to the extent we deemed appropriate, upon
representations, statements and certificates of officers and
representatives of the Company and others.
Attorneys involved in the preparation of this opinion are
admitted to practice law in the State of New York only and we do
not purport to be experts on, or to express any opinion herein
concerning, any law other than the laws of the State of New
York, the federal laws of the United States of America and the
Delaware General Corporation Law.
Based upon and subject to the foregoing, we are of the opinion
that the Shares, when issued and sold under the circumstances
contemplated in the Registration Statement, will be legally
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the references to this firm
under the caption "Legal Matters" in the Prospectus which forms
a part of the Registration Statement. In giving such consent,
we do not admit hereby that we come within the category of
persons whose consent is required under Section 7 of the Act or
the Rules and Regulations of the Commission thereunder.
Very truly yours,
STROOCK & STROOCK & LAVAN
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement on Form S-3 of our report dated March 29,
1994, except as to the information presented in the first and
second paragraphs of Note 13 and in the first paragraph of
Note 14, for which the date is April 8, 1994, on our audits of
the consolidated financial statements and financial statement
schedules of Mark IV Industries, Inc. as of February 28, 1994
and 1993, and for each of the three fiscal years in the period
ended February 28, 1994, which report is included in the
Company's Annual Report on Form 10-K, as amended by Amendment
No. 1 on Form 10-K/A. We also consent to the reference to our
firm under the caption "Experts".
COOPERS & LYBRAND LLP
Rochester, New York
January 31, 1995
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Mark IV Industries, Inc.
Form S-3 (to register Mark IV common stock in connection with
the redemption of 6-1/4% Convertible Subordinated Debentures due
February 15, 2007) of our report dated February 11, 1994 on the
consolidated financial statements of Purolator Products Company
as of December 31, 1993 and 1992 and for the years ended
December 31, 1993, 1992 and 1991 and to all references to our
Firm included in or made a part of this registration statement.
ARTHUR ANDERSEN LLP
Tulsa, Oklahoma
January 30, 1995
