<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 19, 1997
REGISTRATION NO. 333-32707
================================================================================
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
INTERMET CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<C> <C>
GEORGIA
(State or other jurisdiction of incorporation or 58-1563873
organization) (I.R.S. Employer Identification No.)
</TABLE>
5445 CORPORATION DRIVE, SUITE 200
TROY, MICHIGAN 48098-2683
(248) 952-2500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------
DORETHA J. CHRISTOPH
VICE PRESIDENT-FINANCE, CHIEF FINANCIAL OFFICER AND SECRETARY
INTERMET CORPORATION
5445 CORPORATE DRIVE, SUITE 200
TROY, MICHIGAN 48098-2683
(248) 952-2500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
Copies to:
<TABLE>
<C> <C>
JEROME M. SCHWARTZ ROBERT F. WALL
DICKINSON, WRIGHT, MOON, VAN DUSEN & FREEMAN WINSTON & STRAWN
500 Woodward Avenue, Suite 4000 35 West Wacker Drive
Detroit, Michigan 48226 Chicago, Illinois 60601
</TABLE>
Approximate date of proposed sale to the public: As soon as practicable
after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please 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 SECTION 8(A) OF THE
SECURITIES ACT OF 1933, MAY DETERMINE.
================================================================================
<PAGE> 2
EXPLANATORY NOTE
This Amendment No. 2 is being filed solely to file the exhibits filed
herein with the Securities and Exchange Commission. The Company is not updating
or modifying any other information in the Registration Statement at this time.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
<C> <S>
1 Form of Underwriting Agreement.
4.1 Amended and Restated Articles of Incorporation of the
Registrant (included as Exhibit 4.1 to the Registrant's Form
S-3 Registration Statement, filed June 3, 1992, File No.
33-48304, previously filed with the Commission and
incorporated herein by reference).
4.2 Bylaws, as amended (included as Exhibit 3.1 and 4.1 to the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended October 1, 1995, File No. 0-13787, and as Exhibit 3.3
to the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1996, File No. 0-13787, each previously
filed with the Commission and incorporated herein by
reference).
4.3 Shareholders Protection Rights Agreement, which includes a
Form of Rights Certificate and of Election to Exercise,
included as Exhibit A to the Rights Agreement (included as
Exhibit 4 to the Registrant's Form 8-K, dated October 6,
1995, File No. 0-13787, previously filed with the Commission
and incorporated herein by reference).
5 Opinion of Dickinson, Wright, Moon, Van Dusen & Freeman.
23.1 Consent of Ernst & Young LLP.*
23.2 Consent of Dickinson, Wright, Moon, Van Dusen & Freeman
(contained in its opinion filed as Exhibit 5 hereto).
24 Power of Attorney.*
</TABLE>
- -------------------------
* Previously filed.
II-1
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company has duly caused this Amendment to Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Troy,
State of Michigan, on August 19, 1997.
INTERMET CORPORATION
By: /s/ JOHN DODDRIDGE
------------------------------------
John Doddridge
Chairman of the Board of Directors
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment to Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ JOHN DODDRIDGE Chairman of the Board of Directors and August 19, 1997
- ------------------------------------------ Chief Executive Officer (Principal
John Doddridge Executive Officer)
* Director
- ------------------------------------------
Vernon R. Alden
* Director
- ------------------------------------------
J. Frank Broyles
* Director
- ------------------------------------------
John P. Crecine
* Director
- ------------------------------------------
Anton Dorfmueller, Jr.
* Director
- ------------------------------------------
Norman Ehlers
* Director
- ------------------------------------------
John B. Ellis
* Director
- ------------------------------------------
Wilfred E. Gross, Jr.
* Director
- ------------------------------------------
A. Wayne Hardy
* Director
- ------------------------------------------
John R. Horne
</TABLE>
II-2
<PAGE> 5
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Director
- ------------------------------------------
Thomas H. Jeffs II
* Director
- ------------------------------------------
George W. Mathews, Jr.
* Director
- ------------------------------------------
Harold C. McKenzie, Jr.
* Director
- ------------------------------------------
J. Mason Reynolds
* Director
- ------------------------------------------
Curtis W. Tarr
/s/ DORETHA J. CHRISTOPH Vice President--Finance, Chief August 19, 1997
- ------------------------------------------ Financial Officer and Secretary
Doretha J. Christoph (Principal Financial Officer)
/s/ WALTER T. KNOLLENBERG Controller (Principal Accounting August 19, 1997
- ------------------------------------------ Officer)
Walter T. Knollenberg
</TABLE>
*By: /s/ DORETHA J. CHRISTOPH
---------------------------------
Doretha J. Christoph
Attorney-in-Fact
August 19, 1997
II-3
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<C> <S>
1 Form of Underwriting Agreement.
4.1 Amended and Restated Articles of Incorporation of the
Registrant (included as Exhibit 4.1 to the Registrant's Form
S-3 Registration Statement, filed June 3, 1992, File No.
33-48304, previously filed with the Commission and
incorporated herein by reference).
4.2 Bylaws, as amended (included as Exhibit 3.1 and 4.1 to the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended October 1, 1995, File No. 0-13787, and as Exhibit 3.3
to the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1996, File No. 0-13787, each previously
filed with the Commission and incorporated herein by
reference).
4.3 Shareholders Protection Rights Agreement, which includes a
Form of Rights Certificate and of Election to Exercise,
included as Exhibit A to the Rights Agreement (included as
Exhibit 4 to the Registrant's Form 8-K, dated October 6,
1995, File No. 0-13787, previously filed with the Commission
and incorporated herein by reference).
5 Opinion of Dickinson, Wright, Moon, Van Dusen & Freeman.
23.1 Consent of Ernst & Young LLP.*
23.2 Consent of Dickinson, Wright, Moon, Van Dusen & Freeman
(contained in its opinion filed as Exhibit 5 hereto).
24 Power of Attorney.*
</TABLE>
- -------------------------
* Previously filed.
<PAGE> 1
W&S DRAFT
8/18/97
3,000,000
INTERMET CORPORATION
UNDERWRITING AGREEMENT
August ___, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
PRUDENTIAL SECURITIES INCORPORATED
INTERSTATE/JOHNSON LANE CORPORATION
As representatives of the
several underwriters
named in Schedule I hereto
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
The stockholders of Intermet Corporation, a Georgia corporation (the
"Company") named in Schedule II hereto, (collectively, the "Selling
Stockholders") propose to sell an aggregate of 3,000,000 shares of Common
Stock, $0.10 par value per share, of the Company (the "Firm Shares"), to
the several underwriters named in Schedule I hereto (the "Underwriters").
Certain of the Selling Stockholders also propose to sell to the several
Underwriters not more than 450,000 additional shares of Common Stock, $0.10
par value per share, of the Company (the "Additional Shares"), if requested
by the Underwriters as provided in Section 2 hereof. The Firm Shares and
the Additional Shares are herein collectively called the Shares. The
shares of common stock of the Company to be outstanding after giving effect
to the sales contemplated hereby are hereinafter referred to as the Common
Stock.
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the Commission
thereunder (collectively called the "Act"), a registration statement on
Form S-3 (File No. 333-32707) including a prospectus relating to the
Shares, which may be amended. The registration statement as amended at the
time when it becomes effective, including (i) a registration statement (if
any) filed pursuant to Rule 462(b) under the Act increasing the size of the
offering registered under the Act and information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to
Rule 430A under the Act, and (ii) the documents incorporated by reference
in the prospectus contained in the registration statement at the time when
it becomes effective, is hereinafter referred to as the Registration
Statement; and the prospectus in the form first used to confirm sales of
Shares is hereinafter referred as the Prospectus. Any referen ce herein to
any preliminary prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Form S-3 under the Act (the "Incorporated Documents"), as of the date of
such preliminary prospectus or Prospectus, as the case may be.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to
its terms and conditions, (i) each Selling Stockholder agrees, severally
and not
<PAGE> 2
jointly, to sell the number of Firm Shares set forth opposite such Selling
Stockholder's named in Schedule II hereto and (ii) each Underwriter agrees,
severally and not jointly, to purchase from each Selling Stockholder at a
price per share of $___ (the "Purchase Price") the number of Firm Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) which bears the same proportion to the total number of Firm Shares
to be sold by such Selling Stockholder as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto bears to the total
number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, (i) certain of the Selling
Stockholders agree, severally and not jointly, to sell up to the number of
Additional Shares set forth opposite such Selling Stockholder's name in
Schedule II hereto and (ii) the Underwriters shall have the right to purchase
from time to time, severally and not jointly, up to an aggregate 450,000
Additional Shares from those Selling Stockholders who have agreed to sell
Additional Shares at the Purchase Price. Additional Shares may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. The Underwriters may exercise their right to
purchase Additional Shares in whole or in part from time to time by giving
written notice thereof to the Company and the Selling Stockholders within 30
days after the date of this Agreement. You shall give such notice on behalf of
the Underwriters and the notice shall specify the aggregate number of
Additional Shares to be purchased and the date for payment and delivery
thereof. The date specified in the notice shall be a business day (i) no
earlier than the Closing Date (as hereinafter defined), (ii) no later than ten
business days after such notice has been given and (iii) no earlier than two
business days after such notice has been given. The maximum number of
Additional Shares to be purchased from each such Selling Stockholder is set
forth on Schedule II hereto. If less than the maximum number of Additional
Shares are to be purchased hereunder, such Selling Stockholders, severally and
not jointly, agrees to sell to the Underwriters the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) which bears the same proportion to the total number of Additional
Shares to be purchased by the Underwriters as the maximum number of Additional
Shares to be sold by such Selling Stockholders bears to the total number of
Additional Shares. If any Additional Shares are to be purchased, each
Underwriter, severally and not jointly, agrees to purchase from such Selling
Stockholders the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional Shares to be purchased from such
Selling Stockholders as the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule I bears to the total number of Firm Shares.
The Company and the Selling Stockholders hereby agree, severally and
notor otherwise dispose of any Common Stock of the Company or any securities
convertible into or exercisable or exchangeable for Common Stock, except to the
Underwriters pursuant to this Agreement, for a period of 90 days after the date
of the Prospectus without the prior written consent of Donaldson, Lufkin &
Jenrette Securities Corporation. In addition, the Company shall, concurrently
with the execution of this Agreement, deliver an agreement executed by each of
the directors and executive officers of the Company, pursuant to which each
such person agrees to the aforesaid restrictions. Notwithstanding the
foregoing, during such period (i) the Company may issue shares, options or any
securities convertible into, exercisable or exchangeable for Common Stock
pursuant to the terms of its employee benefit plans existing as of the date of
the Prospectus and (ii) the Selling Stockholders and the directors and
executive officers subject to such agreements may transfer or otherwise dispose
of shares of Common Stock pursuant to bona fide gifts to donees that agree in
writing to be bound by such restrictions.
-2-
<PAGE> 3
3. Terms of Public Offering. The Company and the Selling
Stockholders are advised by you that the Underwriters propose (i) to make a
public offering of the Shares as soon after the effective date of the
Registration Statement as in your judgment is advisable and (ii) initially to
offer the Shares upon the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery by the Selling Stockholders
to the Underwriters of the Firm Shares and payment by the Underwriters to the
Selling Stockholders for the Firm Shares shall be made at 10:00 A.M., New
York City time, on the third or fourth business day following the date this
Agreement becomes effective unless otherwise permitted by the Commission
pursuant to Rule 15c6-1 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (the "Closing Date"), at such place outside the State of New
York as you shall designate. The Closing Date and the location of delivery of
and the form of payment for the Firm Shares may be varied by agreement between
you and the Company and the Selling Stockholders.
Delivery by certain Selling Stockholders to the Underwriters of any
Additional Shares and payment by the Underwriters to certain Selling
Stockholders for any Additional Shares to be purchased by the Underwriters
shall be made at such place as you shall designate at 10:00 A.M., New York City
time, on the date specified in the exercise notice given by you pursuant to
Section 2 (the "Option Closing Date"). The Option Closing Date and the
location of delivery of and the form of payment for the Additional Shares may
be varied by agreement between you and the Company and the Selling
Stockholders.
Certificates for the Shares shall be registered in such names and
issued in such denominations by the Selling Stockholders as you shall request
in writing not later than two full business days prior to the Closing Date or
the Option Closing Date, as the case may be. Such certificates shall be made
available to you by the Selling Stockholders for inspection not later than 9:30
A.M., New York City time, on the business day next preceding the Closing Date
or the Option Closing Date, as the case may be. Certificates in definitive
form evidencing the Shares shall be delivered to you by the Selling
Stockholders on the Closing Date or the Option Closing Date, as the case may
be, with any transfer taxes thereon duly paid by the Selling Stockholders, for
the respective accounts of the several Underwriters, against payment of the
Purchase Price therefor by wire transfer of same day funds to the order of the
applicable Selling Stockholders.
5. Agreements of the Company. The Company agrees with you:
(a) To use its best efforts to maintain the effectiveness of the
Registration Statement.
(b) To advise you promptly and, if requested by you, to confirm
such advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment to it becomes effective,
(ii) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purposes, and
(iv) of the happening of any event during the period referred to in
paragraph (e) below which makes any statement of a material fact made in
the Registration Statement or the Prospectus untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal or lifting of such order at the
-3-
<PAGE> 4
earliest possible time.
(c) To furnish to you, without charge, three signed copies of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, and three copies of all documents
incorporated by reference therein, and to furnish to you and each
Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as you may reasonably request.
(d) Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
to make any amendment or supplement to the Prospectus of which you shall
not previously have been advised or to which you shall reasonably object;
and to prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its best efforts to cause the
same to become promptly effective.
(e) Promptly after the Registration Statement becomes effective,
and from time to time thereafter for such period as in the opinion of
counsel for the Underwriters a prospectus is required by law to be
delivered in connection with sales by an Underwriter or a dealer, to
furnish to each Underwriter and dealer as many copies of the Prospectus
(and of any amendment or supplement to the Prospectus) as such Underwriter
or dealer may reasonably request.
(f) If during the period specified in paragraph (e) any event
shall occur as a result of which, in the judgment of the Company or in the
opinion of counsel for the Underwriters it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to amend or supplement the Prospectus
to comply with any law, forthwith to prepare and file with the Commission
an appropriate amendment or supplement to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will not in
the light of the circumstances when it is so delivered, be misleading, or
so that the Prospectus will comply with law, and to furnish to each
Underwriter and to such dealers as you shall specify, such number of copies
thereof as such Underwriter or dealers may reasonably request.
(g) Prior to any public offering of the Shares, to cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request, to continue such qualification in effect
so long as required for distribution of the Shares and to file such
consents to service of process or other documents as may be necessary in
order to effect such registration or qualification.
(h) To make generally available to its stockholders as soon as
reasonably practicable an earnings statement covering a period of at least
twelve months after the effective date of the Registration Statement (but
in no event commencing later than 90 days after such date) which shall
satisfy the provisions of Section 11(a) of the Act, and to advise you in
writing when such statement has been so made available.
(i) During the period of five years after the date of this
Agreement, to comply with all reporting and shareholder communications
obligations imposed upon the Company under the Exchange Act.
-4-
<PAGE> 5
(j) During the period referred to in paragraph (i), to furnish to
you, as soon as available a copy of each report or other publicly available
information of the Company mailed to the holders of Common Stock or filed
with the Commission and such other publicly available information
concerning the Company and its subsidiaries as you may reasonably request.
(k) To pay all costs, expenses, fees and taxes incident to (i) the
preparation, printing, filing and distribution under the Act of the
Registration Statement (including all Incorporated Documents, financial
statements and exhibits), each preliminary prospectus and all amendments
and supplements to any of them prior to or during the period specified in
paragraph (e), (ii) the printing and delivery of the Prospectus and all
amendments or supplements to it during the period specified in paragraph
(e), (iii) the photocopying and delivery of this Agreement, the Blue Sky
Memoranda and all other agreements, memoranda, correspondence and other
documents printed and delivered in connection with the offering of the
Shares (including in each case any disbursements of counsel for the
Underwriters relating to such photocopying and delivery), (iv) the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the several states (including in each case
the reasonable fees and disbursements of counsel for the Underwriters
relating to such registration or qualification and memoranda relating
thereto), (v) filings and clearance with the National Association of
Securities Dealers, Inc. incident to securing any required review of the
terms of the sale of the Shares in connection with the offering (including
the reasonable fees and disbursements of your counsel relating to such
clearance), (vi) furnishing such copies of the Registration Statement, the
Prospectus and all amendments and supplements thereto as may be requested
for use in connection with the offering or sale of the Shares by the
Underwriters or by dealers to whom Shares may be sold during the period
specified in paragraph 5(e) and (vii) the performance by the Company and
the Selling Stockholders (excluding the fees and disbursements of counsel
to the Selling Stockholders, which shall be borne exclusively by the
Selling Stockholders) of their other obligations under this Agreement.
(l) To use its best efforts to maintain the inclusion of its
Common Stock on the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") National Market (or on a national securities
exchange) for a period of five years after the effective date of the
Registration Statement provided, that such covenant shall not prohibit the
Company from engaging in or facilitating any transaction or transactions
that could result in the failure to maintain such inclusion if such
transaction or transactions (i) are approved by the stockholders of the
Company, (ii) include as an integral part an offer made directly to the
stockholders of the Company or (iii) are subject to Rule 13e-3 promulgated
by the Commission pursuant to Exchange Act.
(m) To use its best efforts to do and perform all things required
or necessary to be done and performed under this Agreement by the Company
prior to the Closing Date or the Option Closing Date, as the case may be,
and to satisfy all conditions precedent to the delivery of the Shares.
6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(b)(i) Each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or
-5-
<PAGE> 6
supplemented, if applicable, will 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; (ii)
the Prospectus and any supplements thereto will not contain any 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, not misleading; and (iii) the Incorporated
Documents, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act 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 not misleading, except that the representations and
warranties contained in this paragraph (a) shall not apply to statements or
omissions in the Registration Statement or the Prospectus (or any
supplement or amendment to them) based upon information relating to any
Underwriter furnished to the Company in writing by or on behalf of any
Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, and each Registration Statement filed
pursuant to Rule 462(b) under the Act, if any, complied when so filed in
all material respects with the Act and did 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 light of the
circumstances under which they were made, not misleading.
(d) The Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as it is currently being conducted
and to own, lease and operate its properties, and each is duly qualified
and is in good standing as a foreign corporation authorized to do business
in each jurisdiction in which the nature of its business or its ownership
or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(e) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly and validly authorized and issued and
are fully paid and non-assessable, and are owned by the Company, free and
clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature.
(f) All the outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholders) have been
duly authorized and validly issued and are fully paid, non-assessable and
not subject to any preemptive or similar rights.
(g) The authorized capital stock of the Company, including the
Common Stock, conforms as to legal matters to the description thereof
contained in the Prospectus.
(h) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in any
material respect in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture or instrument material to
the conduct of the business of the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a party or by
which it or any of its subsidiaries or their respective property is bound.
-6-
<PAGE> 7
(i) The execution, delivery and performance of this Agreement,
compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not require any
consent, approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body (except as such may
be required under the federal securities laws and the securities or Blue
Sky laws of the various states) and will not conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the
charter or by-laws of the Company or any of its subsidiaries or any
agreement, indenture or other instrument to which it or any of its
subsidiaries is a party or by which it or any of its subsidiaries or their
respective property is bound, or violate or conflict with any laws,
administrative regulations or rulings or court decrees applicable to the
Company, any of its subsidiaries or their respective property.
(j) Except as otherwise set forth in this Prospectus, the Company
has not violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions of the
Employee Retirement Income Security Act or the rules and regulations
promulgated thereunder, which in each case might result in any material
adverse change in the business, financial condition or results of operation
of the Company and its subsidiaries, taken as a whole.
(k) The Company has all material permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits"),
including, without limitation, under any applicable Environmental Laws, as
are necessary to own, lease and operate its properties and to conduct its
business; the Company has fulfilled and performed all of its material
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such permit; and, except as described in the
Prospectus, such permits contain no restrictions that are materially
burdensome to the Company.
(l) Except as otherwise set forth in the Prospectus, or such as
are not material to the business, prospects, financial condition or results
of operation of the Company and its subsidiaries, taken as a whole, the
Company and each of its subsidiaries has good and marketable title, free
and clear of all liens, claims, encumbrances and restrictions except liens
for taxes not yet due and payable, to all property and assets described in
the Registration Statement as being owned by it. All leases to which the
Company or any of its subsidiaries is a party are valid and binding and no
default has occurred or is continuing thereunder, which might result in any
material adverse change in the business, financial condition or results of
operation of the Company and its subsidiaries taken as a whole.
(m) Ernst & Young LLP are independent public accountants with
respect to the Company as required by the Act.
-7-
<PAGE> 8
(n) The financial statements, together with the related schedules
and notes thereto, included or incorporated in the Registration Statement
and the Prospectus (and any amendment or supplement thereto), present
fairly the consolidated financial position, results of operations and
changes in cash flows of the Company and its subsidiaries on the basis
stated in the Registration Statement at the respective dates or for the
respective periods to which they apply; such statements and the schedules
and related notes thereto have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved; and the other financial and statistical information and data set
forth in the Registration Statement and the Prospectus (and any amendment
or supplement thereto) is, in all material respects, accurately presented
and prepared on a basis consistent with such financial statements and the
books and records of the Company. The pro forma financial statements and
data included or incorporated by reference in the Prospectus present fairly
in all material respects the information shown therein, have been prepared
in accordance with the Commission's rules and guidelines with respect to
pro forma information, have been properly compiled on the pro forma basis
described therein, and, in the opinion of the Company, the assumptions used
in the preparation thereof are reasonable and the adjustments used therein
are appropriate under the circumstances.
(o) The Company is not involved in any labor dispute which, either
any material adverse change in the business, financial condition or results
of operation of the Company and its subsidiaries, taken as a whole, nor, to
the knowledge of the Company, is any such dispute threatened.
(p) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(q) Except for the Selling Stockholders and the Chairman of the
Company with respect to 100,000 shares of Common Stock, no holder of any
security of the Company has any right to require registration of shares of
Common Stock or any other security of the Company.
(r) The Common Stock of the Company has been authorized for
trading over-the-counter on the NASDAQ National Market.
(s) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company.
7. Representations and Warranties of the Selling Stockholders.
Each Selling Stockholder severally represents and warrants to each Underwriter
and the Company that:
(a) Such Selling Stockholder is the lawful owner of the Shares to
be sold by such Selling Stockholder pursuant to this Agreement and has, and
on the Closing Date (and the Option Closing Date, if applicable) will have,
valid and marketable title to such Shares, free of all restrictions on
transfer, liens, encumbrances, security interests and claims whatsoever.
(b) Upon delivery of and payment for such Shares pursuant to this
Agreement, valid and marketable title to such Shares will pass to the
Underwriters, free of all restrictions on transfer, liens, encumbrances,
security interests and claims whatsoever.
-8-
<PAGE> 9
(c) Such Selling Stockholder has, and on the Closing Date will
have, full legal right, power and authority to enter into this Agreement
and the Custody Agreement between the Selling Stockholders and George W.
Mathews, Jr. ("Mathews"), as Custodian (the "Custody Agreement"), and to
sell, assign, transfer and deliver such Shares in the manner provided
herein and therein, and this Agreement and the Custody Agreement have been
duly authorized, executed and delivered by such Selling Stockholder and
each of this Agreement and the Custody Agreement is a valid and binding
agreement of such Selling Stockholder enforceable in accordance with its
terms, except as rights to indemnity and contribution hereunder may be
limited by applicable law.
(d) The power of attorney signed by such Selling Stockholder
appointing Mathews, as his or her attorney-in-fact to the extent set forth
therein with regard to the transactions contemplated hereby and by the
Registration Statement and the Custody Agreement has been duly authorized,
executed and delivered by or on behalf of such Selling Stockholder and is a
valid and binding instrument of such Selling Stockholder enforceable in
accordance with its terms, and, pursuant to such power of attorney, such
Selling Stockholder has authorized Mathews to execute and deliver on his or
her behalf this Agreement and any other document necessary or desirable in
connection with transactions contemplated hereby and to deliver the Shares
to be sold by such Selling Stockholder pursuant to this Agreement.
(e) Such Selling Stockholder has, and on the Closing Date will
have, full legal right, power and authority to enter into this Agreement
and to sell, assign, transfer and deliver such Shares in the manner
provided herein, and this Agreement has been duly authorized, executed and
delivered by such Selling Stockholder and this Agreement is a valid and
binding agreement of such Selling Stockholder enforceable in accordance
with its terms, except as rights to indemnity and contribution hereunder
may be limited by applicable law.
(f) Such Selling Stockholder has not taken, and will not take,
directly or indirectly, any action designed to, or which might reasonably
be expected to, cause or result in the stabilization or manipulation of
the price of any security of the Company, or facilitate the sale or resale
of the Shares pursuant to the distribution contemplated by this Agreement,
and other than as permitted by the Act, such Selling Stockholder has not
distributed and will not distribute any prospectus or other offering
material in connection with the offering and sale of the Shares.
(g) The execution, delivery and performance of this Agreement by
each Selling Stockholder, compliance by such Selling Stockholder with all
the provisions hereof and the consummation of the transactions contemplated
hereby will not require any consent, approval, authorization or other order
of any court, regulatory body, administrative agency or other governmental
body (except as such may be required under the Act, state securities laws
or Blue Sky laws) and will not conflict with or constitute a breach of any
of the terms or provisions of, or a default under, organizational documents
of such Selling Stockholder, or any agreement, indenture or other
instrument to which such Selling Stockholder is a party or by which such
Selling Stockholder or property of such Selling Stockholder is bound, or
violate or conflict with any laws, administrative regulation or ruling or
court decree applicable to such Selling Stockholder or property of such
Selling Stockholder.
(h) Such parts of the Registration Statement under the caption
"Selling Shareholders" which specifically relate to such Selling
Stockholder do 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, in light of circumstances under which they
-9-
<PAGE> 10
were made, not misleading.
(i) To the knowledge of Mathews, without any independent
investigation, the Registration Statement does 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 not
misleading and each of the preliminary prospectus and the Prospectus
does not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(j) At any time during the period described in paragraph 5(e)
hereof, if there is any change in the information referred to in
paragraphs 7(h) or 7(i) above, the Selling Stockholders or Mathews, as
appropriate, will immediately notify you of such change.
8. Indemnification. (a) The Company and Mathews, jointly
and severally, agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, liabilities and judgments (collectively, a "Loss")
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
Loss is caused by any such untrue statement or omission or alleged untrue
statement or omission (i) based upon information relating to any Underwriters
furnished in writing to the Company by or on behalf of any Underwriter through
you expressly for use therein or (ii) made in any preliminary prospectus if a
copy of the Prospectus (as amended or supplemented, if the Company shall
furnish any amendments or supplements thereto) was not sent or given by or on
behalf of any Underwriter to the person asserting any such Loss, at or prior to
the written confirmation of the sale of the Shares and such untrue statement or
omission had been corrected in the Prospectus (as so amended or supplemented).
Notwithstanding the foregoing, and without limiting in any way the
ability of the Underwriters to commence an action or proceeding against
Mathews, Mathews shall not be required to make payment of any amount pursuant
to this Section 8(a) to any Underwriter with respect to any Loss which falls
within the scope of this Section 8 unless and until (i) the Underwriters make a
written demand for indemnification from the Company and (ii) the Company or any
subsidiary has failed to pay any amount owed to any Underwriter pursuant to
this Section 8(a) with respect to any Loss within twenty business days. In the
event that Mathews fails to comply with his obligations with respect to any
Loss, the Underwriters further agree that (x) they will not commence any legal
proceeding against Mathews to recover such Loss unless, prior to or
concurrently therewith, they shall have commenced a legal proceeding against
the Company or any of its subsidiaries to recover the same, (y) the
Underwriters will diligently and in good faith prosecute any such legal
proceeding against the Company or any of its subsidiaries for as long as
Mathews is a party thereto, and (z) in the event that judgments are entered in
favor of the Underwriters against both the Company or any of its subsidiaries
and Mathews in any such legal proceeding (1) during the 45 days following the
date on which the judgment against the Company or any of its subsidiaries
becomes final and is not subject to appeal, the Underwriters will take
commercially reasonable steps to enforce the judgment entered against the
Company or its subsidiaries and will not seek to enforce the judgement entered
against Mathews and (2) after the expiration of such period, the Underwriters
may seek to enforce the judgment entered against Mathews, but will continue to
take commercially reasonable steps to enforce the judgment entered against the
Company for so long as they are seeking to enforce the judgment
-10-
<PAGE> 11
entered against Mathews. Notwithstanding the foregoing, Mathews shall be liable
in accordance with this Section 8(a) without regard to the provisions set forth
in this paragraph immediately after any Insolvency Event (as hereinafter
defined).
For the purposes of the foregoing paragraph, an "Insolvency Event"
shall have occurred when the Company or any of its subsidiaries has (i)
commenced a voluntary proceeding under any Federal or state bankruptcy,
insolvency, reorganization or similar law, or other proceeding to be
adjudicated a bankrupt or insolvent, (ii) consented to the entry of a decree or
order for relief in respect of the Company in any involuntary proceeding or to
the commencement of any similar proceeding against it, (iii) had entered
against it any decree or order for relief in any involuntary proceeding or
adjudging the Company or any subsidiary of the Company a bankrupt or insolvent
or appointing a custodian, receiver or similar official of the Company or any
substantial part of its property, or had any such party appointed or take
possession thereof, (iv) made any assignment for the benefit of creditors, or
(v) has taken any corporate action to authorize any of the foregoing actions.
Notwithstanding the foregoing and without limiting the full extent of the
Company's agreement to indemnify each Underwriter, the aggregate liability of
Mathews pursuant to the provisions of this Section 8(a) shall be limited to an
amount equal to the aggregate purchase price received by Mathews from the sale
of Mathew's Shares pursuant to Section 2 hereunder.
(b) Each of the Selling Stockholders, other than Mathews (the
"Non-affiliated Selling Stockholders") severally and not jointly, agrees
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, and each of the Selling Stockholders, severally and not
jointly, agrees to indemnify and hold harmless the Company, its directors, its
officers, any person controlling the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, in each case to the same extent
as the indemnity from the Company to each Underwriter contained in paragraph
(a) of this Section, but only to the extent such losses, claims, damages,
liabilities or expenses are caused by any untrue statement or alleged untrue
statement contained in, or omission or alleged omission from, information
relating to such Selling Stockholder under the heading "Selling Shareholders" in
the Registration Statement, the Prospectus (as amended or supplemented) or any
preliminary prospectus. Notwithstanding the foregoing and without limiting the
full extent of the Company's agreement to indemnify each Underwriter, the
aggregate liability of each Non-affiliate Selling Stockholder pursuant to the
provisions of this paragraph shall be limited to an amount equal to the
aggregate purchase price received by such Non-affiliate Selling Stockholder
from the sale of such Non-affiliate Selling Stockholder's Shares pursuant to
Section 2 hereunder.
(c) In case any action shall be brought against any Underwriter or
any person controlling such Underwriter, based upon any preliminary prospectus,
the Registration Statement or the Prospectus or any amendment or supplement
thereto and with respect to which indemnity may be sought against the Company
and/or the Selling Stockholders, such Underwriter shall promptly notify the
Company and the Selling Stockholders in writing, and the Company and/or the
Selling Stockholders shall assume the defense thereof, including the employment
of counsel reasonably satisfactory to such indemnified party and payment of all
fees and expenses; provided, however, that the Company shall direct such
defense and select counsel, which counsel shall be satisfactory to the Selling
Stockholders if it is named as a party in such action. Any Underwriter or any
such controlling person shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Underwriter or such controlling
person unless (i) the employment of such counsel has been specifically
authorized in writing by the Company, (ii) the Company or the Selling
Stockholders have
-11-
<PAGE> 12
failed to assume the defense and employ counsel or (iii) the named parties to
any such action (including any impleaded parties) include both such
Underwriter or such controlling person and the Company or the Selling
Stockholders, as the case may be, and such Underwriter or such controlling
person shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to those
available to the Company or the Selling Stockholders, as the case may be (in
which case the Company and the Selling Stockholders shall not have the right to
assume the defense of such action on behalf of such Underwriter or such
controlling person, it being understood, however, that the Company and the
Selling Stockholders shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all such Underwriters and controlling
persons, which firm shall be designated in writing by Donaldson, Lufkin &
Jenrette Securities Corporation and that all such fees and expenses shall be
reimbursed as they are incurred). The Company and the Selling Stockholders
shall not be liable for any settlement of any such action effected without the
written consent of the Company or such Selling Stockholder, as appropriate, but
if settled with the written consent of the Company or such Selling Stockholder,
as appropriate, such party agrees to indemnify and hold harmless any
Underwriter and any such controlling person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than
twenty business days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers, any
person controlling the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, each Selling Stockholder and each person, if
any, controlling such Selling Stockholder within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to each Underwriter but only with reference to
information relating to such Underwriter furnished in writing by or on behalf
of such Underwriter through you expressly for use in the Registration
Statement, the Prospectus or any preliminary prospectus. In case any action
shall be brought against the Company, any of its directors, any officer or any
person controlling the Company or any Selling Stockholder or any person
controlling such Selling Stockholder based on the Registration Statement, the
Prospectus or any preliminary prospectus and in respect of which indemnity may
be sought against any Underwriter, the Underwriter shall have the rights and
duties given to the Company and the Selling Stockholders in this Section 8
(except that if any of the Selling Stockholders or the Company shall have
assumed the defense thereof, such Underwriter shall not be required to do so,
but may employ separate counsel therein and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), and the Company, its directors, any officers and any person
controlling the Company and the Selling Stockholders and any person controlling
such Selling Stockholders shall have the rights and duties given to the
Underwriter, by Section 8(c) hereof. The Company
-12-
<PAGE> 13
and each Selling Stockholder acknowledges that the statements set forth in
the last paragraph of the cover page and under the heading "Underwriting" in
the Registration Statement, Prospectus or any preliminary prospectus constitute
the only information furnished in writing by or on behalf of the several
Underwriters for inclusion in the Registration Statement, Prospectus or any
preliminary prospectus.
(e) Without in any way limiting the full extent of the Company's
agreement to indemnify each Underwriter under Section 8(a), the Company will
indemnify and hold harmless each Selling Stockholder against any losses,
claims, damages or liabilities, joint or several, to which such Selling
Stockholder may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an 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; and in connection with defending any such action or
claim, the Company shall assume the defense of such action or claim including
the employment of counsel reasonably satisfactory to the Selling Stockholders
and payment of all fees and expenses in connection therewith; provided,
however, that the Company 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 contained in or omission or alleged omission from,
information relating to any Selling Stockholder under the heading "Selling
Shareholders" in any preliminary prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement. Nothing in this Section 8(e)
shall limit or otherwise effect Mathews' responsibilities or liabilities as a
member of the Board of Directors of the Company. This Section 8(e) shall only
apply to Mathews in his capacity as a Selling Stockholder and not as a member
of the Board of Directors of the Company.
(f) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any Loss referred to
therein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such Loss (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Selling Stockholders on
the one hand and the Underwriters on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company and the Selling Stockholders and the Underwriters in connection
with the statements or omissions which resulted in such Loss, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Selling Stockholders and the Underwriters shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Selling Stockholders, and the total
underwriting discounts and commissions received by the Underwriters, bear to
the total price to the public of the Shares, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of the Company
and the Selling Stockholders and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section
8(f) were determined by pro rata allocation (even if the Underwriters were
treated as
-13-
<PAGE> 14
one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the Loss referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, (i) no Underwriter or person
controlling such Underwriter, shall be required to contribute any amount in
excess of the amount by which the underwriting discount applicable to the
Shares underwritten by such Underwriter and distributed to the public exceeds
the aggregate 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 and (ii) the Selling Stockholders shall not be
required to contribute any amount in excess of the aggregate purchase price
received by the Selling Stockholders from the sale of the Selling Stockholders'
shares pursuant to Section 2 hereunder. 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 to contribute pursuant to
this Section 8(f) are several in proportion to the respective number of Shares
purchased by each of the Underwriters hereunder and not joint.
The indemnity and contribution agreements contained in this Section 8
are in addition to any liability which the indemnifying persons may
otherwise have to the indemnified persons referred to above.
9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the
Closing Date.
(b) The Registration Statement shall have become effective
not later than 5:00 P.M., (and in the case of a Registration Statement
filed under Rule 462(b) of the Act, not later than 10:00 P.M.) New
York City time, on the date of this Agreement or at such later date
and time as you may approve in writing, and at the Closing Date no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been commenced or shall be pending before or contemplated by the
Commission.
(c)(i) Since the date of the latest balance sheet included or
incorporated by reference in the Registration Statement and the
Prospectus, there shall not have been any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, affairs or
business prospects, whether or not arising in the ordinary course of
business, of the Company, (ii) since the date of the latest balance
sheet included or incorporated by reference in the Registration
Statement and the Prospectus there shall not have been any material
change, or any development involving a prospective material change, in
the capital stock of the Company, or any increase in the long-term
debt of the Company from that set forth in the Registration Statement
and Prospectus, (iii) the Company shall have no liability or
obligation, direct or contingent, which is material to the Company,
other than those reflected in the Registration Statement and the
Prospectus and (iv) on the Closing Date you shall have received a
certificate dated the Closing Date, signed by John Doddridge and
Doretha Christoph, in their capacities as the Chairman of the Board of
Directors, Chief Executive Officer and Vice President - Finance, Chief
-14-
<PAGE> 15
Financial Officer and Secretary of the Company, confirming the matters set
forth in paragraphs (a), (b), and (c) of this Section 9.
(d) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of Dickinson, Wright, Moon, Van Dusen & Freeman, counsel for the
Company to the effect that:
(i) The Company was incorporated as a corporation and is
existing and in good standing under the laws of Georgia, and has the
corporate power to own and use its assets and to conduct its business;
(ii) the Company and each of its domestic subsidiaries that
constitute a "significant subsidiary" as defined in Rule 1-02(w) of
Regulation S-X is qualified to transact business as a foreign
corporation in each jurisdiction that has been certified by an
appropriate officer of the Company, which certificate is attached as
an exhibit to such opinion, as the only states where the Company and
its material subsidiaries own or lease property or conduct business,
which opinion is based solely upon certificates provide by agencies of
those states, copies of which the Company has delivered to the
Underwriters prior to the Closing Date, and is limited to the meaning
ascribed to such certificates by each applicable state agency except
where the failure to be so qualified would not have a material adverse
effect on the Company;
(iii) all the outstanding shares of Common Stock (including the
Shares to be sold by the Selling Stockholders) have been duly
authorized and validly issued and are fully paid, non-assessable and
not subject to any statutory or, to such counsel's knowledge,
contractual preemptive or similar rights;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable by the Underwriters against the Company in
accordance with its terms (except as rights to indemnity and
contribution hereunder may be limited by or unenforceable under
applicable laws or public policy and except as the enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and subject to general
principles of equity, whether enforcement is considered in a
proceeding at law or in equity);
(v) the authorized capital stock of the Company, including
the Common Stock, conforms as to legal matters to the description
thereof included or incorporated by reference in the Registration
Statement and the Prospectus;
(vi) the Registration Statement has become effective under the
Act, and to the knowledge of such counsel, no stop order suspending
its effectiveness has been issued and no proceedings for that purpose
are pending before or contemplated by the Commission;
(vii) the execution, delivery and performance of this Agreement
by the Company and compliance by the Company with all the provisions
hereof and the consummation by the Company of the transactions
contemplated hereby will not require any consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other Michigan or United States federal
governmental body (except as such may be required under the Act or
other securities or Blue Sky laws) and the execution and
-15-
<PAGE> 16
delivery by the Company of this Agreement do not, and if the Company
were now to perform its obligations under this Agreement such
performance would not, result in any (a) conflict with or violation of
the Company's Articles of Incorporation or Bylaws, (b) conflict with,
breach of or default under any material written agreements to which,
to such counsel's knowledge, the Company or its domestic subsidiaries
are a party or by which, to such counsel's knowledge, the Company or
its domestic subsidiaries or any of their respective assets are bound,
or (c) conflict with or violation of any law, judicial or
administrative regulation, ruling, decree, writ, judgment or order to
which, to such counsel's knowledge, the Company or its domestic
subsidiaries or any of their respective assets are subject;
(viii) the Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended;
(ix) to such counsel's knowledge, except for the Selling
Stockholders and the Chairman of the Company with respect to 100,000
shares of Common Stock, no holder of any security of the Company has
any right to require registration of shares of Common Stock or any
other security of the Company;
(x) (1) such counsel is of the opinion that the
Registration Statement and the Prospectus (including any Registration
Statement filed under 462(b) of the Act, if any) and any supplement or
amendment thereto (except for financial statements, schedules and
statistical information as to which no opinion need be expressed)
comply as to form in all material respects with the Act, and (2) such
counsel has no reason to believe that (A) the Registration Statement
and the prospectus included therein at the time the Registration
Statement became effective (except for financial statements, schedules
and statistical information, as aforesaid) contained 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 not
misleading, (B) the Prospectus, as amended or supplemented, if
applicable, as of its date (except for financial statements, schedules
and statistical information, as aforesaid) contained any untrue
statement 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, and (C) the
Registration Statement and the Prospectus, as amended or supplemented,
if applicable, (except for financial statements, schedules and
statistical information, as aforesaid) contains any untrue statement
of a material fact or omits 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.
In giving such opinion with respect to the matters covered by upon
their participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or
verification except as specified.
To the extent that such opinion relates to the laws of states other
than Michigan, such counsel may state that they have relied on the
opinions of local counsel. Copies of such opinions must be delivered to
the Underwriters on the Closing Date. Counsel may rely, as to matters of
fact, upon certificates or statements of public officials, officers, or
-16-
<PAGE> 17
other agents of the Company. In rendering such opinion, counsel may
assume that the law of Georgia and New York is the same of that of
Michigan and Delaware or that this Agreement is governed by the internal
laws of the State of Michigan.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of King & Spalding, counsel to the Selling Stockholders, to the
effect that:
(i) this Agreement has been duly authorized, executed and
delivered by each Selling Stockholder and is a valid and binding
agreement of such Selling Stockholder enforceable in accordance with
its terms (except as rights to indemnity and contribution hereunder
may be limited by applicable laws and except as the enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and subject to general
principles of equity, whether enforcement is considered in a
proceeding at law or in equity);
(ii) to the knowledge of such counsel, without independent
verification, the execution, delivery and performance of this
Agreement by each Selling Stockholder, compliance by each Selling
Stockholder with all the provisions hereof and the consummation of the
transactions contemplated hereby will not require any consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except as such may
be required under the Act or other securities or Blue Sky laws) and
will not conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the trust documents of such Selling
Stockholder, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to any Selling
Stockholder or its respective properties; and
(iii) upon delivery of the certificate for the Shares to
be sold by the Selling Stockholders pursuant to the Agreement and
payment therefor, marketable title will pass to the Underwriters
(assuming the Underwriters have purchased the Shares in good faith and
with no knowledge of an adverse claim and that there are no events or
circumstances peculiar to any individual Underwriter which might
result in such a defect), severally, free and clear of any security
interests, claims, liens or other encumbrances.
(iv) the Custody Agreement has been duly executed and
delivered by each Selling Stockholder and is a valid and binding
agreement of such Selling Stockholder enforceable in accordance with
its terms;
(v) the power of attorney signed by each Selling
Stockholder appointing Mathews, as his or her attorney-in-fact to the
extent set forth therein with regard to the transactions contemplated
hereby and by the Registration Statement has been duly authorized,
executed and delivered by or on behalf of each Selling Stockholder and
are valid and binding instruments of such Selling Stockholder
enforceable in accordance with its terms, and pursuant to such power
of attorney, each of the Selling Stockholders has authorized Mathews,
to execute and deliver on their behalf this Agreement and any other
document necessary or desirable in connection with transactions
contemplated hereby and to deliver the Shares to be sold by them
pursuant to this Agreement.
In rendering this opinion, counsel (i) may state that he expresses
-17-
<PAGE> 18
no opinion as to the laws of any jurisdiction other than (A) the laws
of the State of Georgia and (B) federal law, and (ii) may rely, as to
matters of fact, to the extent he deems reasonable, upon certificates or
statements of the trustees of any Selling Stockholder.
(f) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Winston & Strawn, counsel for the Underwriters, as to
the matters referred to in clauses (iv), (vi), (viii), and (x) of the
foregoing paragraph (d). In giving such opinion and belief, as applicable,
with respect to the matters covered by clause (x) such counsel may state
that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments
or supplements thereto and review and discussion of the contents thereof,
but are without independent check or verification except as specified.
(g) You shall have received a letter on and as of the Closing Date
and the Option Closing Date, if any, in form and substance satisfactory to
you, from Ernst & Young LLP, independent public accountants, with respect
to the financial statements and certain financial information contained in
the Registration Statement and the Prospectus and substantially in the form
and substance of the letter delivered to you by Ernst & Young LLP on the
date of this Agreement.
(h) The Company and the Selling Stockholders shall not have failed
at or prior to the Closing Date to perform or comply with any of the
agreements herein contained and required to be performed or complied with
by the Company at or prior to the Closing Date.
(i) You shall have received on the Closing Date from each Selling
Stockholder 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).
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the satisfaction of the foregoing conditions as to the
Option Closing Date and to the delivery to you on the Option Closing Date of
such documents as you may reasonably request with respect to the good standing
of the Company, the due authorization and issuance of the Additional Shares and
other matters related to the issuance of the Additional Shares.
10. Effective Date of Agreement and Termination. This
Agreement shall become effective upon the later of (i) execution of this
Agreement and (ii) when notification of the effectiveness of the Registration
Statement has been released by the Commission.
This Agreement may be terminated at any time prior to the
Closing Date by you by written notice to the Company and the Selling
Stockholders if any of the following has occurred: (i) since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any adverse change or development involving a prospective adverse
change in the condition, financial or otherwise, of the Company or any of its
subsidiaries or the earnings, affairs, or business prospects of the Company or
any of its subsidiaries, whether or not arising in the ordinary course of
business, which would, in your reasonable judgment, make it impracticable to
market the Shares on the terms and in the manner contemplated in the
Prospectus, (ii) any outbreak or escalation of hostilities or other national or
international calamity or crisis or material change in economic conditions, if
the effect of such outbreak, escalation, calamity, crisis or change on the
financial markets of the United States or elsewhere would, in your reasonable
judgment, make it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus, (iii) the suspension or material
limitation, generally, of trading in securities
-18-
<PAGE> 19
on the New York Stock Exchange, the American Stock Exchange or the NASDAQ
National Market or limitation on prices for securities on any such exchange or
National Market, or specifically, of trading on the NASDAQ National Market in
the Company's Common Stock, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your reasonable opinion
materially and adversely affects, or will materially and adversely affect, the
business or operations of the Company or any of its subsidiaries, (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
reasonable opinion has a material adverse effect on the financial markets in
the United States.
If on the Closing Date or on the Option Closing Date, as the case
may be, any one or more of the Underwriters shall fail or refuse to
purchase the Firm Shares or Additional Shares, as the case may be, which it or
they have agreed to purchase hereunder on such date and the aggregate number of
Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I bears to the total number of Firm
Shares which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase on such date; provided that in no event shall the number of Firm
Shares or Additional Shares, as the case may be, which any Underwriter has
agreed to purchase pursuant to Section 2 hereof be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such number of Firm Shares or
Additional Shares, as the case may be, without the written consent of such
Underwriter. If on the Closing Date or on the Option Closing Date, as the case
may be, any Underwriter or Underwriters shall fail or refuse to purchase Firm
Shares, or Additional Shares, as the case may be, and the aggregate number of
Firm Shares or Additional Shares, as the case may be, with respect to which
such default occurs is more than one-tenth of the aggregate number of Shares to
be purchased on such date by all Underwriters in the event of a default by an
Underwriter and arrangements satisfactory to you and the Company and the
Selling Stockholders for purchase of such Shares are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter and Company and the Selling Stockholders. In
any such case which does not result in termination of this Agreement, either
you or the Company and the Selling Stockholders shall have the right to
postpone the Closing Date or the Option Closing Date, as the case may be, but
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. The cost of preparing, printing and filing any
such amendments to the Registration Statement or the Prospectus that may be
necessary shall be paid for by the Underwriters. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of any such Underwriter under this Agreement.
11. Agreements of the Selling Stockholders.
(a) Each Selling Stockholder agrees to pay or to cause to be
paid all transfer taxes with respect to the Shares to be sold by such Selling
Stockholder.
(b) Each Selling Stockholder agrees with you and the Company to
take all reasonable actions in cooperation with the Company and the
Underwriters to cause the Registration Statement to become effective at the
earliest possible
-19-
<PAGE> 20
time, to do and perform all things to be done and performed under this
Agreement prior to the Closing Date and to satisfy all conditions precedent to
the delivery of the Shares pursuant to this Agreement.
12. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (a) if to the Company, to
Intermet Corporation, Suite 200, 5445 Corporate Drive, Troy, Michigan
48098-2683, Attention: Doretha Christoph, Vice President - Finance, Chief
Financial Officer, and Secretary, (b) if to the Selling Stockholders, to George
Mathews, President, George Mathews & Associates, Inc., 2859 Paces Ferry Road,
Suite 1750, Atlanta, Georgia 30339, and (c) if to any Underwriter or to you, to
you c/o Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park Avenue,
New York, New York 10172, Attention: Syndicate Department, or in any case to
such other address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Selling Stockholders, the Company,
its officers and directors and of the several Underwriters set forth in or made
pursuant to this Agreement shall remain operative and in full force and effect,
and will survive delivery of and payment for the Shares, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter or by or on behalf of the Company or the Selling Stockholders,
the officers or directors of the Company or any controlling person of the
Company or the Selling Stockholders, (ii) acceptance of the Shares and payment
for them hereunder and (iii) termination of this Agreement.
Notwithstanding anything contained herein to the contrary, the
indemnity agreement of the Company in paragraph (a) of Section 8 hereof, the
representations and warranties in paragraphs (a) and (b) of Section 6 hereof
and any representation or warranty as to the accuracy of the Registration
Statement or the Prospectus or any amendment or supplement thereto contained in
any certificate furnished by the Company pursuant to Section 9 hereof, insofar
as they may constitute a basis for indemnification for liabilities (other than
payment by the Company of expenses incurred or paid in the successful defense
of any action, suit or proceeding) arising under the Act, shall not extend to
the extent of any interest therein of a controlling person or partner of an
Underwriter who is a director, officer or controlling person of the Company
when the Registration Statement has become effective, except in each case to
the extent that an interest of such character shall have been determined by a
court of appropriate jurisdiction as not against public policy as expressed in
the Act. Unless in the opinion of counsel for the Company the matter has been
settled by controlling precedent, the Company will, if a claim for such
indemnification is asserted, submit to a court of appropriate jurisdiction the
question whether such interest is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company or the Selling Stockholders
to comply with the terms or to fulfill any of the conditions of this Agreement,
the Company or the Selling Stockholders who gave rise to such termination by
reason of such failure or refusal each severally agree to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by them, but in no event shall
the Company or the Selling Stockholders be liable for the loss of anticipated
profits by the Underwriters.
-20-
<PAGE> 21
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company and the
Selling Stockholders, the Underwriters, any controlling persons referred to
herein and their respective successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include a purchaser of any of the Shares from any of the several
Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
-21-
<PAGE> 22
Please confirm that the foregoing correctly sets forth the agreement
between the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
INTERMET CORPORATION
By
-----------------------------
Title:
[SELLING STOCKHOLDERS]
By
-------------------------------
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
PRUDENTIAL SECURITIES INCORPORATED
INTERSTATE/JOHNSON LANE CORPORATION
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By
---------------------------
-22-
<PAGE> 23
SCHEDULE I
Number of Firm Shares
Underwriters to be Purchased
- ------------ ---------------
Donaldson, Lufkin & Jenrette
Securities Corporation
Prudential Securities Incorporated
Interstate/Johnson Lane Corporation
Total
-----------------------
3,000,000
<PAGE> 24
SCHEDULE II
Selling Stockholders
<TABLE>
<CAPTION>
MAXIMUM NUMBER OF
NUMBER OF FIRM ADDITIONAL SHARES
NAME SHARES BEING SOLD SUBJECT TO SALE
<S> <C> <C>
George W. Mathews, Jr. ...................... 1,850,000 362,000
The George W. Mathews Jr.
Charitable Remainder Trust
created under Agreement
dated July 30, 1997 ........................ 350,000 -
The Jane K. Mathews Charitable
Remainder Trust created under
Agreement dated July 30, 1997 .............. 350,000 -
George W. Mathews, III ...................... 225,000 44,000
Kathleen M. Hohlstein ....................... 225,000 44,000
--------- -------
3,000,000 450,000
</TABLE>
-24-
<PAGE> 1
EXHIBIT 5
DICKINSON, WRIGHT, MOON, VAN DUSEN & FREEMAN
500 WOODWARD AVENUE, SUITE 4000
DETROIT, MICHIGAN 48226
TELEPHONE: (313) 223-3500
FACSIMILE: (313) 223-3598
August 19, 1997
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street
Washington, D.C. 20549
Re: Registration Statement of Intermet Corporation on Form S-3,
Registration Statement Number 333-32707
Ladies and Gentlemen:
We are acting as counsel to Intermet Corporation, a Georgia corporation
(the "Company"), in connection with the preparation of a Registration Statement
on Form S-3 (the "Registration Statement") relating to the proposed sale of
3,450,000 shares (the "Shares") of the Company's Common Stock, $0.10 par value
per share, by the Selling Shareholders (as defined in the Prospectus that forms
a part of the Registration Statement).
In connection with the preparation of the Registration Statement, we have
examined such corporate records and other documents and certificates relating to
the issuance of the Shares as we have deemed necessary.
Based upon the foregoing, it is our opinion that the Shares, when sold by
the Selling Shareholders, will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and further consent to the use of our firm name under the
heading "Legal Matters" in the Registration Statement. In giving such consent,
we do not concede that we are experts within the meaning of the Securities Act
of 1933, as amended (the "Act"), or the rules or regulations thereunder, or that
this consent is required by Section 7 of the Act.
Very truly yours,
/s/ DICKINSON, WRIGHT, MOON,
VAN DUSEN & FREEMAN
