<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 7, 1994
REGISTRATION NO. 33-52315
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXCEL INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
INDIANA 35-1551685
(STATE OF INCORPORATION) (IRS EMPLOYER IDENTIFICATION NO.)
1120 N. MAIN STREET
P.O. BOX 3118
ELKHART, INDIANA 46515-3118
(219) 264-2131
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JAMES J. LOHMAN,
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
EXCEL INDUSTRIES, INC.
1120 N. MAIN STREET
P.O. BOX 3118
ELKHART, INDIANA 46515-3118
(219) 264-2131
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
PHILIP L. MCCOOL, ESQ. JOHN M. RINTAMAKI, ESQ. JON R. LIND, ESQ.
SOMMER & BARNARD, PC FORD MOTOR COMPANY MCDERMOTT, WILL & EMERY
4000 BANK ONE TOWER THE AMERICAN ROAD, 227 WEST MONROE STREET
INDIANAPOLIS, INDIANA DEARBORN, MICHIGAN 48121- CHICAGO, ILLINOIS 60606-
46244-0363 1899 5906
(317) 630-4000 (313) 322-3000 (312) 372-2000
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
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. [ ]
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are the actual or estimated expenses in connection with the
issuance and distribution of the Common Stock being registered. The Selling
Shareholders will pay all of such expenses unless the Underwriters' over-
allotment option is exercised, in which event the Selling Shareholders and the
Company will pay such expenses pro rata based upon the number of shares sold by
each of them.
<TABLE>
<S> <C>
Registration Fee................................................ $ 18,420
Printing of Registration Statement and Prospectus............... 110,000
Accounting Fees and Expenses.................................... 30,000
Legal Fees...................................................... 50,000
American Stock Exchange Fees.................................... 7,700
NASD Filing Fee................................................. 5,842
Blue Sky fees and expenses...................................... 12,000
Miscellaneous................................................... 16,038
--------
Total....................................................... $250,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
A. The Company is an Indiana corporation. Indiana Code Chapter 23-1-37
provides:
Chapter 37. Indemnification of Directors, Officers, Employees, and Agents.
Sec. 1. As used in this chapter, "corporation" includes any domestic or
foreign predecessor entity of a corporation in a merger or other transaction in
which the predecessor's existence ceased upon consummation of the transaction.
Sec. 2. As used in this chapter, "director" means an individual who is or was
a director of a corporation or an individual who, while a director of a
corporation, is or was serving at the corporation's request as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, limited liability company, joint venture, trust,
employee benefit plan, or other enterprise, whether for profit or not. A
director is considered to be serving an employee benefit plan at the
corporation's request if the director's duties to the corporation also impose
duties on, or otherwise involve services by, the director to the plan or to
participants in or beneficiaries of the plan. "Director" includes, unless the
context requires otherwise, the estate or personal representative of a
director.
Sec. 3. As used in this chapter, "expenses" include counsel fees.
Sec. 4. As used in this chapter, "liability" means the obligation to pay a
judgment, settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), or reasonable expenses incurred with
respect to a proceeding.
Sec. 5. As used in this chapter, "official capacity" means:
(1) when used with respect to a director, the office of director in a
corporation; and
(2) when used with respect to an individual other than a director, as
contemplated in section 13 of this chapter, the office in a corporation
held by the officer or the employment or agency relationship undertaken by
the employee or agent on behalf of the corporation.
"Official capacity" does not include service for any other foreign or
domestic corporation or any partnership, limited liability company, joint
venture, trust, employee benefit plan, or other enterprise, whether for profit
or not.
Sec. 6. As used in this Chapter, "party" includes an individual who was, is,
or is threatened to be made a named defendant or respondent in a proceeding.
II-1
<PAGE>
Sec. 7. As used in this chapter, "proceeding" means any threatened, pending,
or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal.
Sec. 8. (a) A corporation may indemnify an individual made a party to a
proceeding because the individual is or was a director against liability
incurred in the proceeding if:
(1) the individual's conduct was in good faith; and
(2) the individual reasonably believed:
(A) in the case of conduct in the individual's official capacity with
the corporation, that the individual's conduct was in its best
interests; and
(B) in all other cases, that the individual's conduct was at least
not opposed to its best interests; and
(3) in the case of any criminal proceeding, the individual either:
(A) had reasonable cause to believe the individual's conduct was
lawful; or
(B) had no reasonable cause to believe the individual's conduct was
unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose the director reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subsection (a)(2)(B).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this section.
Sec. 9. Unless limited by its articles of incorporation, a corporation shall
indemnify a director who was wholly successful, on the merits or otherwise, in
the defense of any proceeding to which the director was a party because the
director is or was a director of the corporation against reasonable expenses
incurred by the director in connection with the proceeding.
Sec. 10. (a) A corporation may pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance of final
disposition of the proceeding if:
(1) the director furnishes the corporation a written affirmation of the
director's good faith belief that the director has met the standard of
conduct described in section 8 of this chapter;
(2) the director furnishes the corporation a written undertaking,
executed personally or on the director's behalf, to repay the advance if it
is ultimately determined that the director did not meet the standard of
conduct; and
(3) a determination is made that the facts then known to those making the
determination would not preclude indemnification under this chapter.
(b) The undertaking required by subsection (a)(2) must be an unlimited
general obligation of the director but need not be secured and may be accepted
without reference to financial ability to make repayment.
(c) Determinations and authorizations of payments under this section shall be
made in the manner specified in section 12 of this chapter.
Sec. 11. Unless a corporation's articles of incorporation provide otherwise,
a director of the corporation who is a party to a proceeding may apply for
indemnification to the court conducting the proceeding or to
II-2
<PAGE>
another court of competent jurisdiction. On receipt of an application, the
court after giving any notice the court considers necessary may order
indemnification if it determines:
(1) the director is entitled to mandatory indemnification under section 9
of this chapter, in which case the court shall also order the corporation
to pay the director's reasonable expenses incurred to obtain court-ordered
indemnification; or
(2) the director is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances, whether or not the director met the
standard of conduct set forth in section 8 of this chapter.
Sec. 12. (a) A corporation may not indemnify a director under section 8 of
this chapter unless authorized in the specific case after a determination has
been made that indemnification of the director is permissible in the
circumstances because the director has met the standard of conduct set forth in
section 8 of this chapter.
(b) The determination shall be made by any one (1) of the following
procedures:
(1) By the board of directors by majority vote of a quorum consisting of
directors not at the time parties to the proceeding.
(2) If a quorum cannot be obtained under subdivision (1), by majority
vote of a committee duly designated by the board of directors (in which
designation directors who are parties may participate), consisting solely
of two (2) or more directors not at the time parties to the proceeding.
(3) by special legal counsel:
(A) Selected by the board of directors or its committee in the manner
prescribed in subdivision (1) or (2); or
(B) If a quorum of the board of directors cannot be obtained under
subdivision (1) and a committee cannot be designated under subdivision
(2), selected by majority vote of the full board of directors (in which
selection directors who are parties may participate).
(4) By the shareholders, but shares owned by or voted under the control
of directors who are at the time parties to the proceeding may not be voted
on the determination.
(c) Authorization of indemnification and evaluation as to reasonableness of
expenses shall be made in the same manner as the determination that
indemnification is permissible, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subsection
(b)(3) to select counsel.
Sec. 13. Unless a corporation's articles of incorporation provide otherwise:
(1) An officer of the corporation, whether or not a director, is entitled
to mandatory indemnification under section 9 of this chapter, and is
entitled to apply for court-ordered indemnification under section 11 of
this chapter, in each case to the same extent as a director;
(2) The corporation may indemnify and advance expenses under this chapter
to an officer, employee, or agent of the corporation, whether or not a
director, to the same extent as to a director; and
(3) A corporation may also indemnify and advance expenses to an officer,
employee, or agent, whether or not a director, to the extent, consistent
with public policy, that may be provided by its articles of incorporation,
bylaws, general or specific action of its board of directors, or contract.
Sec. 14. A corporation may purchase and maintain insurance on behalf of an
individual who is or was a director, officer, employee or agent of the
corporation, or who, while a director, officer, employee, or agent of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trust, employee, or agent of another foreign or domestic
corporation, partnership, limited liability company, joint venture, trust
employee benefit plan, or other enterprise, against liability asserted against
or incurred by the individual in that capacity or arising from the individual's
status as a director, officer, employee, or agent, whether or not the
corporation would have power to indemnify the individual against the same
liability under section 8 or 9 of this chapter.
II-3
<PAGE>
The:
(1) Corporation may purchase insurance under this section from; and
(2) Insurance purchased under this section may be reinsured in whole or in
part by;
an insurer that is owned or otherwise affiliated with the corporation, whether
the insurer does or does not do business with other persons.
Sec. 15. (a) The indemnification and advance for expenses provided for or
authorized by this chapter does not exclude any other rights to indemnification
and advance for expenses that a person may have under:
(1) A corporation's articles of incorporation or bylaws;
(2) A resolution of the board of directors or of the Shareholders;
(3) Any other authorization, whenever adopted, after notice, by a
majority vote of all the voting Common Shares then issued and outstanding.
(b) If the articles of incorporation, bylaws, resolutions of the board of
directors or of the Shareholders, or other duly adopted authorization of
indemnification or advance for expenses limit indemnification or advance for
expenses, indemnification and advance for expenses are valid only to the extent
consistent with the articles, bylaws, resolution of the board of directors or
of the Shareholders, or other duly adopted authorization of indemnification or
advance for expenses.
(c) This chapter does not limit a corporation's power to pay or reimburse
expenses incurred by a director, officer, employee, or agent in connection with
the person's appearance as a witness in a proceeding at a time when the person
has not been made a named defendant or respondent to the proceeding.
B. Article XII, Section 6 of the Company's Articles of Incorporation
provides:
Section 6. Limitation of Liability and Indemnification of Officers and
Directors. No officer or director of the Corporation shall be liable to the
Corporation for any loss or damage suffered by it on account of any action
taken or omitted to be taken by him as a director, officer or employee of the
Corporation in good faith if such person:
(i) exercised or used the same degree of care and skill as a prudent man
would have exercised or used under the circumstances in the conduct of his
own affairs; or
(ii) took or omitted to take such action in reliance upon the advice of
counsel for the Corporation or upon statements made or information
furnished by officers or employees of the Corporation which he had
reasonable grounds to believe, or upon a financial statement of the
Corporation prepared by an officer or employee of the Corporation in charge
of its accounts, or a public accountant or firm of public accountants; or
(iii) in good faith considered the assets to be of their book value or
followed what he believed to be sound accounting and business practice.
The Corporation shall indemnify any person against whom there is instituted
or threatened any claim, action, suit or proceeding, whether civil or criminal,
by reason of the fact that he, his testator or intestate is or was a director,
member of an executive committee or officer of the Corporation, or of any
corporation which he served as such at the request of the Corporation, against
any and all liability, reasonable expenses and costs of any nature (excluding
only accounts paid in settlement and including without limitation any and all
attorneys' fees, judgments, fines, penalties and court costs) actually incurred
by him in connection with the defense of such claim, action, suit or
proceeding, or in connection with any appeal therein, except in relation to
matters as to which it shall be finally adjudged in such action, suit or
proceeding that such person, his testator or intestate is liable for gross
negligence or willful misconduct in the performance of his duties. The
Corporation may also reimburse to any such person any amount paid in settlement
of any such claim, action, suit or proceeding, if it shall be found by a
majority of a committee composed of the directors not
II-4
<PAGE>
involved in the matter in controversy (whether or not a quorum) that it is in
the interests of the Corporation that such settlement be made and that such
person, his testator or intestate was not guilty of gross negligence or willful
misconduct.
If several claims, issues or matters of action are involved, any such person
may be entitled to indemnification as to some matters even though he is not so
entitled as to others. The Corporation may advance expenses to, or where
appropriate may at its expense undertake the defense of, any such person upon
receipt of an undertaking by or on behalf of such person to repay such expenses
if it should ultimately be determined that he is not entitled to
indemnification under this Article.
The provisions of this Section shall be in addition to and not in limitation
of any other right of indemnification and reimbursement or limitations of
liability to which any director, member of an executive committee or officer
may be entitled as a matter of law. The provisions of this Section shall apply
whether or not at the time of reimbursement the person reimbursed is then a
director, member of an executive committee or officer of the Corporation.
Notwithstanding any repeal of this Section or other amendment thereof, its
provisions shall be binding upon the Corporation (subject only to the
exceptions hereinabove set forth) as to all actions, suits or proceedings and
expenses connected therewith, judgments and settlements thereof, as above
provided, arising out of matters which occur during or are referable to the
period prior to any such repeal or amendment of this Section.
By vote of the Board of Directors, the Corporation may assent to the adoption
of a by-law or charter provision, having substantially the provisions of this
Section, by any subsidiary, whether or not wholly owned.
C. The Company has obtained a directors' and officers' liability and
corporation reimbursement policy which (subject to certain limits and
deductibles) (i) insures officers and directors of the Company against loss
arising from certain claims made against them by reason of their being such
directors or officers, and (ii) insures the Company against loss which it may
be required or permitted to pay as indemnification due its directors or
officers for certain claims.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S> <C>
1 Form of Underwriting Agreement
4.1 A specimen of the certificate representing the common
stock of the Company was filed as Exhibit 4.1 to the
Company's Amendment No. 1 to the Registration Statement on
Form S-1 filed on April 3, 1984 (Reg. No. 2-89521) and is
incorporated herein by reference
4.2 Article VI, Section 3-5, Article VII and Article XII, Sec-
tion 1 of the Articles of Incorporation of the Company
were filed as part of Exhibit 3.1 to the Registration
Statement on Form S-1 filed on February 27, 1987 (Reg. No.
33-12282) and are incorporated herein by reference
4.3 The Code of By-Laws of the Company as amended effective
April 29, 1992 was filed as Exhibit 4.3 to the Company's
Registration Statement on Form S-2 (Reg. No. 33-47706)
filed on May 6, 1992, and is incorporated herein by refer-
ence
5 Opinion and Consent of Sommer & Barnard, PC
23.1 Consent of Sommer & Barnard, PC (included in Exhibit 5)
23.2 Consent of Independent Accountants
24 Power of Attorney
</TABLE>
II-5
<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) For the purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan pursuant to
section 15(d) of the Securities Exchange Act of 1934) 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.
(2) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions
described in Item 15, or otherwise, the Company has been advised that in
the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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 Act and will be governed by the
final adjudication of such issue.
(3) For the purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as a
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.
(4) For the purposes of determining any liability under the Securities
Act of 1933, 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.
II-6
<PAGE>
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 AMENDMENT TO ITS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF ELKHART, STATE OF INDIANA, ON THE 7TH DAY OF
MARCH, 1994.
Excel Industries, Inc.
/s/ Joseph A. Robinson
By: _________________________________
Joseph A. Robinson
Secretary, Treasurer and Chief
Financial Officer
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 INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ James J. Lohman*
- ------------------------------------
James J. Lohman Chief Executive Officer and March 7, 1994
Chairman of the Board
Principal Executive Officer
/s/ Joseph A. Robinson
- ------------------------------------
Joseph A. Robinson Secretary, Treasurer, Chief March 7, 1994
Financial Officer and
Director Principal
Financial Officer and
Principal Accounting
Officer
/s/ James O. Futterknecht, Jr.*
- ------------------------------------
James O. Futterknecht, Jr. Director March 7, 1994
/s/ Roger E. Maugh*
- ------------------------------------
Roger E. Maugh Director March 7, 1994
/s/ John G. Keane*
- ------------------------------------
John G. Keane Director March 7, 1994
/s/ James K. Sommer*
- ------------------------------------
James K. Sommer Director March 7, 1994
/s/ Ralph R. Whitney, Jr.*
- ------------------------------------
Ralph R. Whitney, Jr. Director March 7, 1994
/s/ Robert R. Reilly*
- ------------------------------------
Robert R. Reilly Director March 7, 1994
</TABLE>
/s/ Joseph A. Robinson
*By: _____________________
Joseph A. Robinson
Attorney-in-Fact
<PAGE>
INDEX TO EXHIBITS FILED
TO REGISTRATION STATEMENT ON
FORM S-3 OF EXCEL INDUSTRIES, INC.
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------- ----------- ------------
<C> <S> <C>
1 Form of Underwriting Agreement.......................
4.1 A specimen of the certificate representing the common
stock of the Company was filed as Exhibit 4.1 to the
Company's Amendment No. 1 to the Registration State-
ment on Form S-1 filed on April 3, 1984 (Reg. No. 2-
89521) and is incorporated herein by reference
4.2 Article VI, Section 3-5, Article VII and Article XII,
Section 1 of the Articles of Incorporation of the
Company were filed as part of Exhibit 3.1 to the Reg-
istration Statement on Form S-1 filed on February 27,
1987 (Reg. No. 33-12282) and are incorporated herein
by reference
4.3 The Code of By-Laws of the Company as amended effec-
tive April 29, 1992 was filed as Exhibit 4.3 to the
Company's Registration Statement on Form S-2 (Reg.
No. 33-47706) filed on May 6, 1992, and is incorpo-
rated herein by reference
5 Opinion and Consent of Sommer & Barnard, PC*
23.1 Consent of Sommer & Barnard, PC (included in Exhibit
5)
23.2 Consent of Independent Accountants*
24 Power of Attorney*
</TABLE>
- --------
*previously filed
1
<PAGE>
Exhibit 1
2,557,128 Shares
EXCEL INDUSTRIES, INC.
Common Shares
UNDERWRITING AGREEMENT
----------------------
__________, 1994
DEAN WITTER REYNOLDS INC.
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
As Representatives of the several Underwriters
c/o Dean Witter Reynolds Inc.
Two World Trade Center
65th Floor
New York, New York 10048
Dear Sirs:
Certain shareholders named in Schedule II hereto (the "Selling
Shareholders") of Excel Industries, Inc., an Indiana corporation (the
"Company"), propose, subject to the terms and conditions stated herein, to sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 2,557,128 Common Shares, no par value (the "Common Shares") of the Company,
and the Company proposes, subject to the terms and conditions stated herein,
and, at the election of the Underwriters, to sell up to 380,000 additional
Common Shares. The 2,557,128 Common Shares to be sold by the Selling
Shareholders are herein called the "Firm Shares" and the 380,000 additional
Common Shares to be sold by the Company are herein called the "Optional Shares".
The Firm Shares and the Optional Shares which the Underwriters elect to purchase
pursuant to Section 2 are herein collectively called the "Shares".
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters and each of the Selling Shareholders that:
(i) A registration statement on Form S-3 (File No. 33-52315) with
respect to the Shares, including a preliminary prospectus dated February
24, 1994 filed pursuant to Rule 424(a) (the "Preliminary Prospectus"), has
heretofore been delivered to you, has been carefully prepared by the
Company in conformity with the requirements of the Securities Act of 1933,
as amended (the "Act"), and the published rules and
<PAGE>
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") under the Act, and has been filed with the
Commission under the Act. Such registration statement (including all
exhibits thereto) and the prospectus constituting a part thereof as amended
at the time of such registration statement being declared effective
(including in each case all documents incorporated by reference therein, as
from time to time amended or supplemented pursuant to the Act, the
Securities Exchange Act of 1934 (the "Exchange Act") or otherwise and
including information included in the final form of prospectus filed with
the Commission pursuant to Rule 424(b) and deemed to be a part thereof
pursuant to Rule 430A(b) of the Rules and Regulations), are hereinafter
referred to as the "Registration Statement," and such final prospectus in
the form first filed with the Commission pursuant to Rule 424(b) (including
all documents incorporated by reference therein, as from time to time
amended or supplemented pursuant to the Act, the Exchange Act, or
otherwise) being hereinafter referred to as the "Prospectus," except that
if any revised prospectus shall be provided to the Underwriters by the
Company for use in connection with the offering of the Shares which differs
from the prospectus so filed (whether or not such prospectus is required to
be filed by the Company pursuant to Rule 424(b) of the Rules and
Regulations), the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to the Underwriters for such
use.
(ii) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus, and, at its date of issue, each
Preliminary Prospectus conformed in all material respects with the
requirements of the Act and the Rules and Regulations and did not include
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. When the Registration Statement becomes effective, the
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations. At
the time the Registration Statement becomes effective, the Registration
Statement will not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus at the time the
Registration Statement becomes effective and at each Time of Delivery will
not include an untrue statement
2
<PAGE>
of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the foregoing
representations, warranties and agreements shall not apply to information
contained in or omitted from the Registration Statement or the Prospectus
in reliance upon, and in conformity with, written information furnished to
the Company by or on behalf of any Underwriter, directly or through the
Representatives, specifically for use in the preparation thereof.
(iii) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the published
rules and regulations of the Commission thereunder, and none of such
documents 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 therein, in the light of the circumstances under which they
were made, not misleading; and any further documents so filed and
incorporated by reference, when they become effective or are filed with the
Commission, will conform in all material respects to the requirements of
the Exchange Act and the published rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(iv) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as set forth
or contemplated in the Prospectus, neither the Company nor any of its
subsidiaries has incurred any material liabilities or obligations, direct
or contingent, nor entered into any material transactions not in the
ordinary course of business which are material to the Company and its
subsidiaries considered as a whole; there has not been any material adverse
change in the condition (financial or otherwise), business, prospects or
results of operations of the Company and its subsidiaries considered as a
whole, whether or not arising in the ordinary course of business, or any
change in the capital stock or increase in the long-term debt of the
Company and its subsidiaries considered as a whole; and except as set forth
or contemplated in the Prospectus there has been no
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dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
(v) The consolidated financial statements, together with the related
notes and schedules set forth or incorporated by reference in the
Prospectus and elsewhere in the Registration Statement, fairly present, on
the basis stated in the Registration Statement, the consolidated financial
position and the consolidated results of operations, cash flows and
shareholders' equity of the Company and its consolidated subsidiaries at
the respective dates or for the respective periods therein specified. Such
financial statements and related notes and schedules have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis except as may be set forth in the Prospectus. The
selected financial and operating data set forth in the Prospectus under the
captions "Summary Consolidated Financial Information," "Selected
Consolidated Financial Information" and "Management's Discussion and
Analysis of Results of Operations and Financial Condition," fairly
presents, on the bases stated in the Registration Statement, the
information set forth therein.
(vi) Price Waterhouse, who have expressed their opinions on the
audited financial statements and related notes included in the Registration
Statement, are independent public accountants as required by the Act and
the Rules and Regulations.
(vii) The Company and each of its subsidiaries have been duly
organized and are validly existing as corporations under the laws of their
respective jurisdictions of organization, with power and authority
(corporate and other) to own, lease and operate their properties and to
conduct their businesses as described in the Registration Statement and
Prospectus; the Company and each of its subsidiaries are in possession of
and operating in compliance with all franchises, grants, authorizations,
licenses, permits, easements, consents, certificates and orders required
for the conduct of their business, all of which are valid and in full force
and effect, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such franchise, grant, authorization, license, permit,
easement, consent, certificate or order which, singly or in the aggregate,
if the subject of an unfavorable decision, would materially adversely
affect the conduct of the business, operations, financial condition or
income of the Company and its subsidiaries
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considered as a whole; and the Company and each of such subsidiaries are
duly qualified to do business and in good standing as foreign corporations
in all other jurisdictions where their ownership or leasing of properties
or the conduct of their businesses requires such qualification.
(viii) At December 31, 1993, the Company had authorized, issued and
outstanding capital stock as set forth under the heading "Capitalization"
in the Prospectus; the issued and outstanding Common Shares of the Company
conform to the description thereof in the Prospectus and have been duly
authorized and validly issued and are fully paid and nonassessable; except
for the rights of Ford Motor Company ("Ford") to acquire Common Shares as
provided in the Stock Purchase Agreement dated August 19, 1986 between Ford
and the Company (the "Ford Stock Purchase Agreement"), the shareholders of
the Company have no preemptive rights with respect to any shares of capital
stock of the Company and all outstanding shares of capital stock of each
corporate subsidiary have been duly authorized and validly issued, and are
fully paid and nonassessable and are owned directly by the Company free and
clear of any liens, encumbrances, equities or claims. At the First Time of
Delivery, the Ford Stock Purchase Agreement will be of no further force or
effect except for certain indemnification provisions.
(ix) The Optional Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued and fully paid and nonassessable and will conform
to the description thereof in the Registration Statement.
(x) Except as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject, which are required to be disclosed in the
Registration Statement (other than as described therein), or which, if
determined adversely to the Company or any subsidiary, would individually
or in the aggregate result in a material adverse change in the condition
(financial or otherwise), business, prospects or results of operations of
the Company and its subsidiaries taken as a whole or which might materially
and adversely affect the consummation of this Agreement; and to the best of
the Company's knowledge no such proceedings are threatened or
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contemplated by governmental authorities or threatened by others.
(xi) Neither the Company nor any of its subsidiaries is in violation
of its charter or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
statute, contract, indenture, mortgage, deed of trust, loan agreement,
note, lease or other agreement or instrument to which it is a party or by
which it or its property may be bound; the performance of this Agreement
and the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms or provisions of or
constitute a default under any statute, contract, indenture, mortgage, deed
of trust, loan agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which they
are bound, the Company's Articles of Incorporation or Code of By-laws, or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of
their properties.
(xii) No labor dispute with the employees of the Company or any of
its subsidiaries exists or to the best of the Company's knowledge, is
imminent; and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors which might be expected to result in any
material adverse change in the condition (financial or otherwise), or in
the earnings, affairs or business prospects of the Company and its
subsidiaries considered as a whole.
(xiii) Except as described in the Prospectus, the Company and its
subsidiaries own or possess, or can acquire on reasonable terms, the
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and unpatentable proprietary
or confidential information, systems or procedures), trademarks, service
marks and trade names presently employed by them in connection with the
businesses now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing which,
singly or in the aggregate, is likely to result in any material adverse
change in the condition (financial or otherwise), or in the earnings,
affairs or business prospects of the Company and its subsidiaries
considered as a whole.
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(xiv) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the Company
of the transactions contemplated by this Agreement, except such as may be
required by the National Association of Securities Dealers, Inc. or under
the Act to register the Shares or the securities or Blue Sky laws of any
jurisdiction in connection with the purchase and distribution of the Shares
by the Underwriters.
(xv) This Agreement has been duly authorized, executed and delivered
by the Company.
(xvi) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act except for (a) certain rights that have been granted
to certain affiliates of CIGNA Corporation and certain affiliates of
Textron Investment Management Company, Inc., all of whom have agreed not to
exercise or are not entitled to exercise, such rights in connection with
this offering, and (b) certain rights granted to Ford pursuant to the Ford
Stock Purchase Agreement.
(b) Each of the Selling Shareholders severally represents and
warrants to, and agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Shareholder of this Agreement
and for the sale and delivery of the Shares to be sold by such Selling
Shareholder hereunder, have been obtained; and such Selling Shareholder has
full right, power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Shares to be sold by such Selling
Shareholder hereunder;
(ii) The sale of the Shares to be sold by such Selling Shareholder
hereunder and the compliance by such Selling Shareholder with all of the
provisions of this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any
7
<PAGE>
statute, indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Selling Shareholder is a party or by
which such Selling Shareholder is bound or to which any of the property or
assets of such Selling Shareholder is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
By-laws of such Selling Shareholder or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over such Selling Shareholder or the property of such Selling Shareholder;
(iii) Such Selling Shareholder has, and immediately prior to the
First Time of Delivery (as defined in Section 4 hereof) such Selling
Shareholder will have, good and valid title to the Shares to be sold at the
First Time of Delivery by such Selling Shareholder hereunder, free and
clear of all liens, encumbrances, equities or claims; and will transfer
good and valid title to such Shares, free and clear of all liens,
encumbrances, equities or claims.
(iv) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(v) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity
with written information furnished to the Company by such Selling
Shareholder expressly for use therein, such Preliminary Prospectus and the
Registration Statement did, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus will, when
they become effective or are filed with the Commission, as the case may be,
conform in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder and not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading; and
(vi) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to
8
<PAGE>
the transactions herein contemplated, each of the Selling Shareholders
agrees to deliver to you prior to the First Time of Delivery (as
hereinafter defined) a properly completed and executed United States
Treasury Department Form W-9 (or other applicable form or statement
specified by Treasury Department regulations in lieu thereof).
(c) Any certificate signed by an officer of the Company, any Selling
Shareholder or any Attorney-in-Fact, and delivered to the Representatives or
counsel for the Underwriters shall be deemed a representation and warranty of
the Company or such Selling Shareholder as to the matters covered thereby.
2. Subject to the terms and conditions herein set forth, (a) each of
the Selling Shareholders agrees, severally and not jointly, to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from each of the Selling Shareholders, at a purchase price
per Share of $_____, the number of Firm Shares (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the aggregate number of
Firm Shares to be sold by each of the Selling Shareholders as set forth opposite
their respective names in Schedule II hereto by a fraction, the numerator of
which is the aggregate number of Firm Shares to be purchased by such Underwriter
as set forth opposite the name of such Underwriter in Schedule I hereto, and the
denominator of which is the aggregate number of Firm Shares to be purchased by
all of the Underwriters from all the Selling Shareholders hereunder and (b) in
the event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase price per Share set
forth in clause (a) of this Section 2, that portion of the number of Optional
Shares as to which such election shall have been exercised (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying such number
of Optional Shares by a fraction the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of the Optional Shares which all of the
Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 380,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised as to all or any part of the Optional Shares
only by written notice from you to the Company, at any time within a period of
30 calendar days after the date of this
9
<PAGE>
Agreement, setting forth the aggregate number of Optional Shares to be purchased
and the date on which such Optional Shares are to be delivered, as determined by
you but in no event earlier than the First Time of Delivery (as defined in
Section 4 hereof) or, unless you and the Company otherwise agree in writing,
earlier than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares
and, if applicable, the Optional Shares, the several Underwriters propose to
offer the Firm Shares and, if applicable, the Optional Shares for sale upon the
terms and conditions set forth in the Prospectus, and, in connection with such
offer or the sale of such Firm Shares and Optional Shares, will use the
Prospectus, together with any amendment or supplement thereto, that specifically
describes the Shares, in the form which has been most recently distributed to
them by the Company, only as permitted or contemplated thereby, and will offer
and sell such Firm Shares and Optional Shares only as permitted by the Act and
the applicable securities laws or regulations of any jurisdiction. The
Representatives will inform the Company when they have authorized the sale of
the Firm Shares and Optional Shares to the public and when they have been
advised that such Firm Shares and Optional Shares have been sold by the several
Underwriters promptly after such sales are completed.
4. Certificates in definitive form for the Shares to be purchased by
each Underwriter hereunder, and in such denominations and registered in such
names as Dean Witter Reynolds Inc. may request upon at least forty-eight hours
prior notice to the Company and the Selling Shareholders, shall be delivered by
or on behalf of the Company and the Selling Shareholders to you for the account
of such Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by certified or official bank check or checks or similar
next day funds, payable to the order of the Company and each of the Selling
Shareholders, as their interests may appear, in Chicago Clearing House funds,
all at the office of McDermott, Will & Emery, 227 W. Monroe, Chicago, Illinois.
The time and date of such delivery and payment shall be, with respect to the
Firm Shares, 9:30 a.m., Chicago time, on __________, 1994, or at such other time
and date as you, the Company and the Selling Shareholders may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., Chicago time, on
the date specified by you in the written notice given by you of the
Underwriters' election to purchase such Optional Shares, or at such other time
and date as you and the Company may agree upon in writing. Such time and date
for delivery of the Firm Shares are herein called the "First Time of Delivery,"
such time and date for delivery of the Optional Shares, if not the First Time of
Delivery, are herein called the "Second Time of Delivery," and each such time
and date for delivery are herein called a "Time of Delivery." Certificates will
be made available for checking and packaging at
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least twenty-four hours prior to each Time of Delivery at the office of Dean
Witter Reynolds Inc. in New York, New York.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form furnished to you (having
given you a reasonable opportunity to review the same) and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Registration Statement or Prospectus prior to the last Time of
Delivery prior to having furnished you and the Selling Shareholders with a copy
of the proposed form thereof and given you and the Selling Shareholders a
reasonable opportunity to review the same; to advise you and the Selling
Shareholders, promptly after it receives notice thereof, of the time when the
Registration Statement, or any amendment thereto, has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish you and the Selling Shareholders with copies thereof; to
file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Shares; to advise you and the
Selling Shareholders, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or Prospectus or suspending any such qualification,
to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions in the United States as you may request
and to continue such qualifications in effect so long as necessary under such
laws for the distribution of the Shares, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction, and provided
further that the expense of maintaining any such qualification more than one
year
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from the date of this Agreement with respect to such Shares shall be at the
expense of the Underwriters;
(c) To furnish the Underwriters and the Selling Shareholders with
copies of the Registration Statement (excluding exhibits) and copies of the
Prospectus as amended or supplemented in such quantities as you and the Selling
Shareholders may from time to time reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering or sale of
the Shares and if at such time either (i) any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading or (ii)
if for any other reason it shall be necessary during such period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus as amended or supplemented in order
to comply with the Act or the Exchange Act, to notify you and the Selling
Shareholders and upon your request or the request of either Selling Shareholder
to file such document and to prepare and furnish to each Selling Shareholder and
to furnish without charge to each Underwriter and to any dealer in securities as
many copies as such parties may from time to time reasonably request of, an
amendment or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is required to
deliver a prospectus in connection with sales of any of the Shares at any time
nine months or more after the time of issue of the Prospectus, upon your request
but at the expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to security holders of the Company as
soon as practicable, but in any event no later than eighteen months after the
effective date of the Registration Statement (as such date is defined in Rule
158(c) under the Act), an earning statement of the Company and its consolidated
subsidiaries complying with Rule 158 under the Act and covering a period of at
least twelve consecutive months beginning after such effective date;
(e) During a period of 120 days from the date of this Agreement, the
Company will not, without the Representatives' prior written consent, directly
or indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any Common Shares or any security convertible into Common
Shares, except (i) pursuant to existing employee benefit, incentive, stock
option or stock purchase plans (including the Excel Industries, Inc. 1994 Stock
Compensation Plan); or (ii) upon the
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conversion of the Company's 10% Convertible Subordinated Notes due December 1,
2000;
(f) At the time this Agreement is executed, the Company shall have
furnished to the Representatives a letter from each officer and director of the
Company addressed to the Representatives, in which such person agrees not to
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce an offering of, any Common Shares beneficially owned by
such entity or any securities convertible into, or exchangeable for, Common
Shares for a period of 120 days following the date of this Agreement without the
prior written consent of the Representatives;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished by the Company to security
holders, and deliver to you during such same period (i) as soon as they are
available, copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as you may from
time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its shareholders generally
or to the Commission); and
(h) To use its best efforts to list, subject to notice of issuance,
the Optional Shares on the American Stock Exchange.
6. The Company and each of the Selling Shareholders covenant and
agree with one another and with the several Underwriters that (a) the Company
and such Selling Shareholder will pay or cause to be paid a pro-rata share
(based on the number of Shares sold by the Company and such Selling Shareholder
hereunder) of: (i) the fees, disbursements and expenses of the Company's
counsel and accountants' in connection with the registration of the Shares under
the Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing this Agreement, the Blue Sky Memorandum and any legal investment
survey and furnishing the same to the Underwriters and dealers; (iii) all
expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky Memorandum and any legal
investment survey; (iv) the cost of preparing stock certificates; (v) all
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fees and expenses (including legal fees and disbursements of counsel for the
Underwriters) paid or incurred in connection with filings made with the National
Association of Securities Dealers, Inc.; (vi) the cost and charges of any
transfer agent, registrar or conversion agent; and (b) the Company will pay or
cause to be paid all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section and (c) such Selling Shareholder will pay or cause to be paid all costs
and expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section including any fees and
expenses of counsel for such Selling Shareholder. It is understood, however,
that, except as provided in this Section, Section 9(c) and Section 11 hereof,
the Underwriters will pay all of their own costs and expenses, including,
without limitation, costs of printing any Agreement among Underwriters and fees
of their counsel, stock transfer taxes on resale of any of the Shares by them,
and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Shareholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Shareholders shall have performed all of its and their obligations hereunder
theretofore to be performed, in all material respects, and the following
additional conditions:
(a) The Registration Statement shall have become effective and the
Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the
Rules and Regulations and in accordance with Section 5(a) hereof; no stop
order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have been
complied with or otherwise satisfied;
(b) McDermott, Will & Emery, counsel for the underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery,
with respect to the Shares being delivered at such Time of Delivery, the
Registration Statement, the Prospectus, and other related matters as you
may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters;
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(c) Sommer & Barnard, PC, or such other counsel satisfactory to you
in your reasonable judgment and to each of the Selling Shareholders in
their reasonable judgment, shall have furnished to you and to each of the
Selling Shareholders their written opinion, dated such Time of Delivery, in
form and substance satisfactory to you and to each of the Selling
Shareholders in your and their reasonable judgment, to the effect that:
(i) The Company has been duly incorporated, is validly existing
as a corporation under the laws of Indiana and has power and authority
(corporate and other) to own or lease its properties and conduct its
business as described in the Prospectus; and to the best of such
counsel's knowledge, the Company is duly qualified as a foreign
corporation in good standing in all other jurisdictions where its
ownership or leasing of properties or the conduct of its business
requires such qualification except where the failure to be so
qualified would not have a material adverse effect on the Company's
business, operations, financial condition or income.
(ii) Each of Excel Metalcraft, Ltd., Excel Corporation and Excel
Industries of Michigan, Inc., wholly-owned subsidiaries of the Company
(together the "Subsidiaries"), has been duly incorporated, is validly
existing as a corporation under the laws of its jurisdiction of
incorporation and has power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus, and to the best of such counsel's knowledge each of such
Subsidiaries is duly qualified as a foreign corporation in good
standing in all other jurisdictions where its ownership or leasing of
properties or the conduct of its business requires such qualification
except where the failure to be so qualified would not have a material
adverse effect on the Company's business and assets.
(iii) All outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable, and are owned by the Company free and clear of
any liens, encumbrances, equities and claims.
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(iv) At December 31, 1993, the Company had authorized and
outstanding capital stock as set forth under the heading
"Capitalization" in the Prospectus; all outstanding Common Shares
conform to the description thereof in the Prospectus and have been
duly authorized and validly issued and are fully paid and
nonassessable, and the shareholders of the Company have no preemptive
rights with respect to any shares of capital stock of the Company.
The Shares to be issued and sold by the Company to the Underwriters
hereunder have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly
and validly issued and fully paid and nonassessable and will conform
to the description thereof in the Registration Statement.
(v) To the best of such counsel's knowledge, and except for the
environmental matter described in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of
its Subsidiaries is a party or of which any property of the Company or
any Subsidiary is the subject, which if determined adversely to the
Company or any Subsidiary, would individually or in the aggregate
materially affect the business, operations, financial condition or
income of the Company and its Subsidiaries taken as a whole; and to
the best of such counsel's knowledge no such proceedings are
threatened by governmental authorities or others except as disclosed
in the Prospectus.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company; and the performance of this Agreement and
the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms or provisions of
or constitute a default under any statute, contract, indenture,
mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument known to such counsel to which the Company is
a party or by which it is bound, the Company's Articles of
Incorporation or Code of By-laws, or any order, rule or regulation
known to such counsel of any court
16
<PAGE>
or governmental agency or body having jurisdiction over the Company or
any of its properties.
(vii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement, except
such as may be required to register the Shares under the Act or as may
be required under the securities or Blue Sky laws of any jurisdiction
in connection with the purchase and distribution of the Shares by the
Underwriters.
(viii) The Registration Statement has become effective under the
Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act.
(ix) The Registration Statement and the Prospectus (other than
the financial statements and supporting schedules included therein, as
to which no opinions need be rendered), excluding the documents
incorporated by reference therein, and each amendment or supplement
thereto, as of their respective effective or issue dates and as of the
Time of Delivery complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations.
(x) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules included
therein, as to which no opinions need be rendered), as of the dates
they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and the
published rules and regulations thereunder; and nothing has come to
such counsel's attention that caused such counsel to believe that the
Registration Statement, at the time it became effective, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the
17
<PAGE>
Prospectus, at the date of this Agreement (unless the term
"Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Company for use in connection with the offering of
the Shares which differs from the prospectus on file at the Commission
at the time the Registration Statement became effective, in which case
at the time it was first provided to the Underwriters for such use),
or at the Time of Delivery, included any untrue statement of a
material fact or omitted to state any material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(xi) The descriptions in the Registration Statement and
Prospectus of contracts and other documents are accurate in all
material respects and such descriptions fairly present in all material
respects the information required to be shown; and such counsel does
not know of any legal or governmental proceedings or of any contracts
or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to or
incorporated by reference into the Registration Statement or
Prospectus which are not described, filed or incorporated by reference
as required.
(d) The respective counsel for each of the Selling Shareholders, as
indicated in Schedule II hereto, each shall have furnished to you and the
Company their written opinion with respect to each of the Selling
Shareholders for whom they are acting as counsel, dated the First Time of
Delivery, in form and substance satisfactory to you in your reasonable
judgment, to the effect that:
(i) This Agreement has been duly executed and delivered by such
Selling Shareholder and constitutes a valid and binding agreement of
such Selling Shareholder in accordance with its terms; and the sale of
the Shares to be sold by such Selling Shareholder hereunder and the
compliance by such Selling Shareholder with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result
18
<PAGE>
in a breach or violation of any terms or provisions of, or constitute
a default (in each case material to such Selling Shareholder and its
subsidiaries considered as a whole) under, any statute, indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which such Selling Shareholder is
a party or by which such Selling Shareholder is bound or to which any
of the property or assets of such Selling Shareholder is subject, nor
will such actions result in any violation of the provisions of the
Certificate of Incorporation or Bylaws of such Selling Shareholder or
any violation (in each case material to such Selling Shareholder and
its subsidiaries considered as a whole) of any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over such Selling Shareholder or the
property of such Selling Shareholder;
(ii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with the
Shares to be sold by such Selling Shareholder hereunder, except such
as have been obtained under the Act and such as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of such Shares by the Underwriters;
(iii) Immediately prior to the First Time of Delivery such
Selling Shareholder had good and valid title to the Shares to be sold
at the First Time of Delivery by such Selling Shareholder under this
Agreement, free and clear of all liens, encumbrances, equities or
claims, and full right, power and authority to sell, assign, transfer
and deliver the Shares to be sold by such Selling Shareholder
hereunder; and
(iv) Good and valid title to the Shares, free and clear of all
liens, encumbrances, equities or claims, will transfer upon delivery
thereof by the Selling Shareholders in accordance with the terms of
this Agreement.
19
<PAGE>
In rendering the opinion in subparagraph (iv) such counsel may rely upon a
certificate of such Selling Shareholder in respect of matters of fact as to
ownership of and liens, encumbrances, equities or claims on the Shares sold by
such Selling Shareholder, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such certificate;
(e) At 10:00 a.m., Chicago time, on the effective date of the
Registration Statement and the most recently filed post-effective amendment
to the Registration Statement and also at each Time of Delivery, Price
Waterhouse shall have furnished to you a letter or letters, dated the
respective date of delivery thereof, in form satisfactory to you in your
reasonable judgment, to the effect set forth in Annex I hereto.
(f) Since the respective dates as of which information is given in
the Prospectus, there shall not have occurred any material adverse change,
or any development involving a prospective material adverse change, in or
affecting particularly the business or assets of the Company and its
subsidiaries considered as a whole, or any material adverse change in the
financial position or results of operations of the Company and its
Subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Prospectus, which in any such case makes it
impracticable or inadvisable in your reasonable judgment to proceed with
the public offering or the delivery of the Shares being delivered at such
Time of Delivery on the terms and in the manner contemplated in this
Agreement and in the Prospectus as amended or supplemented;
(g) (i) The United States shall not have become engaged in
hostilities which have resulted in the declaration of a national emergency
or a declaration of war, or (ii) there shall not have occurred a suspension
or material limitation in trading in securities generally on the American
or New York Stock Exchanges which, in either case, makes it impracticable
or inadvisable in your reasonable judgment to proceed with the public
offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus as
amended or supplemented;
(h) The Shares to be sold by the Company at such Time of Delivery
shall have been duly listed, subject to notice of issuance, on the American
Stock Exchange; and
20
<PAGE>
(i) The Company and the Selling Shareholders shall have furnished or
caused to be furnished to you at such Time of Delivery a certificate or
certificates of officers of the Company and of the Selling Shareholders in
form satisfactory to you in your reasonable judgment as to the accuracy of
the representations and warranties of the Company and of the Selling
Shareholders herein at and as of such Time of Delivery, as to the
performance by the Company and the Selling Shareholders of all of its and
their respective obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and (f) of
this Section and as to such other matters as you may reasonably request.
8. (a) The Company and Ford, jointly and severally, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company and Ford shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through you expressly
for use therein; and provided further that the Company and Ford shall not be
liable to any Underwriter of Shares or any person controlling such Underwriter
under the indemnity agreement in this subsection (a) with respect to any of such
documents to the extent that any such loss, claim, damage or liability of such
Underwriter or controlling person results from the fact that such Underwriter
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 or of the Prospectus
as then amended or supplemented (excluding documents incorporated by reference),
whichever is most recent, if the Company has previously furnished copies thereof
to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company and
Ford against any losses, claims, damages or
21
<PAGE>
liabilities to which the Company or Ford, as the case may be, may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment 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 such untrue statement or alleged
untrue statement or omission or alleged omission was made in any of such
documents in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through you expressly for use therein; and
will reimburse the Company and Ford for any legal fees or other expenses
reasonably incurred by the Company or Ford, as the case may be, in connection
with investigating or defending any such action or claims as such expenses are
incurred.
(c) Promptly after receipt by the indemnified party under subsection
(a) or (b) above of written 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 the indemnifying party in
writing of the commencement thereof, and in the event that such indemnified
party shall not so notify the indemnifying party within 30 days following
receipt of any such notice by such indemnified party, the indemnifying party
shall have no further liability under such subsection to such indemnified party
unless such indemnifying party shall have received other notice addressed and
delivered in the manner provided in the second paragraph of Section 12 hereof of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party in its reasonable
judgment, and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under subsection (a) or (b) above in respect
of any losses, claims, damages or
22
<PAGE>
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Selling Shareholders on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Shareholders on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by the Company and the Selling
Shareholders bear to the total underwriting discounts and commissions received
by the Underwriters with respect to the Shares purchased under this Agreement,
in each case as set forth in the table on the cover page of the Prospectus
relating to such Shares. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Shareholders on
the one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, including, with respect to any such Underwriter, the
extent to which such losses, claims, damages or liabilities (or actions in
respect thereof) result from the fact that such Underwriter 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 or of the Prospectus
(excluding documents incorporated by reference), whichever is most recent, if
the Company has previously furnished copies thereof to such Underwriter. The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
23
<PAGE>
defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company and Ford under this Section 8
shall be in addition to any liability which the Company and Ford may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
(including any person who, with his consent, is named in the Registration
Statement as about to become a director of the Company) and to each person, if
any, who controls the Company within the meaning of the Act.
(f) If the indemnification provided for in Exhibit D of the Ford
Stock Purchase Agreement is unavailable to either the Selling Shareholders on
the one hand or the Company on the other under Section 7 of said Exhibit D in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then the indemnifying party shall contribute to
the amount paid or payable by the indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Company on the
one hand and the Selling Shareholders on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact relates to information supplied by the Company on the one hand or
the Selling Shareholders on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Selling Shareholders agree that it
would not be just and equitable if contribution pursuant to this subsection (f)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (f). The
24
<PAGE>
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (f) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim and any amounts paid to the Underwriters
pursuant to subsection (a) or (d) of Section 8 hereof. 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.
9. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another party or other
parties to purchase such Shares on the terms contained herein. If within 36
hours after such default by any Underwriter you do not arrange for the purchase
of such Shares, then the Company and the Selling Shareholders shall be entitled
to a further period of 36 hours within which to procure another party or other
parties satisfactory to you to purchase such Shares on such terms. In the event
that, within the respective prescribed periods, you notify the Company and the
Selling Shareholders that you have so arranged for the purchase of such Shares,
or the Company and the Selling Shareholders notifies you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Shareholders shall have the right to postpone such Time of Delivery for a period
of not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in the opinion
of your counsel, counsel for the Company and counsel for the Selling
Shareholders referred to in Sections 7(b), 7(c) and 7(d), respectively, hereof
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Shareholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all the Shares to be purchased at such Time of Delivery,
then the Company and the Selling Shareholders shall have the right to require
each non-defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter
25
<PAGE>
agreed to purchase hereunder) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Shareholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all the Shares to be purchased at such Time of Delivery, or
if the Company and the Selling Shareholders shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligation of the
Underwriters to purchase and of the Company to sell the Optional Shares) may
thereupon be terminated either by the Selling Shareholders (or, with respect to
the Second Time of Delivery, by the Company) or, through the Representatives, by
such Underwriters as have agreed to purchase in the aggregate 50% or more of the
aggregate number of remaining Shares to be purchased at such Time of Delivery,
without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Shareholders, except for the expenses to be borne by the Company
and the Selling Shareholders and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Shareholders and the
several Underwriters hereunder, as set forth in this Agreement or made by them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter, or the Company, or any of the Selling
Shareholders, or any of their respective officers or directors or any
controlling person, and shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, or if any Shares are not delivered by the Company or a Selling
Shareholder as provided herein because the condition set forth in Section 7(g)
hereof has not been met, the Company and the Selling Shareholders shall then be
under no liability hereunder to any Underwriter, except as provided in Section 6
and Section 8 hereof; but, if any Shares are not delivered because the condition
set forth in Section 7(a) hereof has not been met, the Company will be liable to
reimburse the Underwriters through you for all out-of-pocket expenses, including
counsel fees and disbursements, as approved in writing by you, reasonably
incurred by the Underwriters in making
26
<PAGE>
preparations for the purchase, sale, and delivery of the Shares; but, if for any
other reason any Firm Shares are not delivered by a Selling Shareholder as
provided herein Ford will be liable to reimburse the Underwriters through you
for all out-of-pocket expenses, including counsel fees and disbursements, as
approved in writing by you, reasonably incurred by the Underwriters in making
preparations for the purchase, sale, and delivery of the Shares; but the Company
and the Selling Shareholders shall then have no further liability to any
Underwriter except as provided in Section 6 and Section 8 hereof.
12. In all dealings with the Company under this Agreement, you shall
act on behalf of each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, or by telegram if promptly confirmed in writing, and if to the
Representatives or the Underwriters shall be sufficient in all respects if
delivered or sent by registered mail, telex or facsimile transmission to you as
the representative c/o Dean Witter Reynolds Inc. at Two World Trade Center, 65th
Floor, Corporate Finance, New York, New York 10048, Attn.: Samuel H. Wolcott,
III; if to the Company shall be sufficient in all respects if delivered or sent
by registered mail, telex or facsimile transmission to the Company at 1120 N.
Main Street, P.O. Box 3118, Elkhart, Indiana 46515-3118, Attn.: Chairman of the
Board and Chief Executive Officer; and if to any Selling Shareholder shall be
sufficient in all respects if delivered or sent by registered mail, telex or
facsimile transmission to such Selling Shareholder at The American Road,
Dearborn, Michigan 48121, Attn: Secretary; provided, however, that any notice to
an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
registered mail, telex or facsimile transmission directly to such Underwriter at
its address set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company or the Selling
Shareholders by you upon request.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Shareholders, and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and any person who controls the Company, any Selling Shareholder or
any Underwriter, and their respective personal representatives, successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. No purchaser of any of the Shares from any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
27
<PAGE>
14. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, whereupon this letter and your acceptance
hereof shall constitute a binding agreement. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company and the Selling Shareholders for
examination upon request. You represent that you are authorized on behalf of
yourselves and each of the Underwriters to enter into this Agreement.
28
<PAGE>
Very truly yours,
EXCEL INDUSTRIES, INC.
By:___________________________
Name:_________________________
Title:________________________
FORD MOTOR COMPANY
By:___________________________
Name:_________________________
Title:________________________
FORD MOTOR COMPANY FUND
By:___________________________
Name:_________________________
Title:________________________
Accepted as of the date hereof:
DEAN WITTER REYNOLDS INC.
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
Acting on their own behalf and
as Representatives of the
several Underwriters referred
to in the foregoing Agreement.
By: DEAN WITTER REYNOLDS INC.
By:___________________________
Authorized Signature
02\28\94\20766\024\10UWABBG.005
29
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Number of Optional
Total Number of Shares to be Pur-
Firm Shares chased if Maximum
to be Purchased Option Exercised
---------------- --------------------
<S> <C> <C>
Dean Witter Reynolds Inc. ...
Goldman, Sachs & Co. ........
J.P. Morgan Securities Inc. . _________ _______
Total................... 2,557,128 380,000
========= =======
</TABLE>
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Number of Optional
Total Number of Shares to be Sold
Firm Shares if Maximum
to be Sold Option Exercised
--------------- ------------------
<S> <C> <C>
The Company................... -0- 380,000
The Selling Shareholders:
Ford Motor Company(1)....... 1,509,927 -0-
Ford Motor Company Fund(1).. 1,047,201 -0-
--------- -------
Total.................... 2,557,128 380,000
========= =======
</TABLE>
<PAGE>
ANNEX I
Matters to be Covered by Letters of
Price Waterhouse
-----------------------------------
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the Rules and
Regulations.
(ii) In their opinion, the audited financial statements and
supporting schedule(s) examined by them and included or incorporated by
reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related and the rules and regulations thereunder
with respect to registration statements on Form S-3.
(iii) They have performed specified procedures, not constituting an
audit, including a reading of the latest available interim financial statements
of the Company and its subsidiaries, a reading of the minute books of the
Company and such subsidiaries, inquiries of officials of the Company and such
subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, and on the basis of
such inquiries and procedures nothing came to their attention that caused them
to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements
of the Exchange Act as it applies to Form 10-Q and the related published
rules and regulations thereunder or are not in conformity with generally
accepted accounting principles applied on a basis substantially consistent
with the basis for the audited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(B) at a specified date not more than five days prior to the date of
such letter, there was any change in the shareholders' equity or any
increase in the long-term debt of the Company and its consolidated
subsidiaries or any decrease in consolidated assets, in each case as
compared with amounts shown in the most recent consolidated balance sheet
included in the
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Registration Statement, except in each case for changes, increases or
decreases disclosed in such letter; or
(C) for the period from the date of the most recent financial
statements in the Registration Statement to a specified date not more than
five days prior to the date of such letter, there was any decrease, as
compared with the corresponding period in the preceding year, in operating
income from operations, except in each case for increases or decreases
disclosed in such letter; or
(iv) In addition to the examination referred to in their report
included in the Registration Statement and the Prospectus, they have carried out
certain other specified procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which are included in the
Registration Statement and the Prospectus and which are specified by the
Representatives, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and other
records of the Company and its subsidiaries identified in such letter.
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