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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 2
to
SCHEDULE 13D
Under the Securities Exchange Act of 1934
U. S. Intec, Inc.
(Name of Issuer)
Common Stock, par value $.02 per share
(Title of Class of Securities)
912084-10-0
(Cusip Number)
Michael E. Dillard, P.C.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201-4618
(214) 969-2800
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
September 14, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13D-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with this Statement / /.
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Page 1 of
Exhibit Index appears on Page .
<PAGE>
1) Names of Reporting Person
S.S. of I.R.S. Identification No. of Above Person
First Southwest Company
2) Check the Appropriate Box (a) /X/
if a Member of a Group (b) / /
(See Instructions)
3) SEC Use Only
4) Source of Funds (See instructions)
WC
5) Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization
Texas
Number of Shares (7) Sole Voting Power--None
Beneficially Owned by
Each Reporting Person (8) Shared Voting Power--179,290
With*
(9) Sole Dispositive Power--None
(10) Shared Dispositive Power--179,290
(11) Aggregate Amount Beneficially Owned by Each Reporting Person*
179,290
(12) Check box if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions)
(13) Percent of Class Represented by Amount in Row (11)
5.9%
(14) Type of Reporting Person (See Instructions)
CO, BD
* But See Item 5.
2
<PAGE>
13D
CUSIP No. 912084-10-0
1) Names of Reporting Person
S.S. of I.R.S. Identification No. of Above Person
Utley Group II Ltd.
2) Check the Appropriate Box if a Member of a Group
(See Instructions) (a) /X/
(b) / /
3) SEC Use Only
4) Source of Funds (See instructions)
WC
5) Check if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization
Texas
Number of Shares (7) Sole Voting Power--None
Beneficially Owned by
Each Reporting (8) Shared Voting Power--204,290
Person With*
(9) Sole Dispositive Power--None
(10) Shared Dispositive Power--204,290
(11) Aggregate Amount Beneficially Owned by Each Reporting Person*
204,290
(12) Check box if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions) / /
(13) Percent of Class Represented by Amount in Row (11)
6.7%
(14) Type of Reporting Person (See Instructions)--PN
* But See Item 5.
3
<PAGE>
13D
CUSIP No. 912084-10-0
1) Names of Reporting Person
S.S. of I.R.S. Identification No. of Above Person
Hill A. Feinberg
2) Check the Appropriate Box if a Member of a Group
(See Instructions) (a) /X/
(b) / /
3) SEC Use Only
4) Source of Funds (See instructions)
PF
5) Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e) / /
(6) Citizenship or Place of Organization
United States of America
Number of Shares (7) Sole Voting Power--None
Beneficially Owned
by Each Reporting (8) Shared Voting Power--199,290
Person With*
(9) Sole Dispositive Power--None
(10) Shared Dispositive Power--199,290
(11) Aggregate Amount Beneficially Owned by Each Reporting Person*
199,290
(12) Check box if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions) / /
(13) Percent of Class Represented by Amount in Row (11)
6.6%
(14) Type of Reporting Person (See Instructions)
IN
* But See Item 5.
4
<PAGE>
13D
CUSIP No. 912084-10-0
1) Names of Reporting Person
S.S. of I.R.S. Identification No. of Above Person
Debra J. Feinberg
2) Check the Appropriate Box if a Member of a Group (a) /X/
(See Instructions) (b) / /
3) SEC Use Only
4) Source of Funds (See instructions)
PF
5) Check if Disclosure of Legal Proceedings is / /
Required Pursuant to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization
United States of America
Number of Shares (7) Sole Voting Power--None
Beneficially Owned by
Each Reporting Person (8) Shared Voting Power--7,500
With*
(9) Sole Dispositive Power--None
(10) Shared Dispositive Power--7,500
(11) Aggregate Amount Beneficially Owned by Each Reporting Person*
7,500
(12) Check box if the Aggregate Amount in Row (11) Excludes Certain
Shares / /
(See Instructions)
(13) Percent of Class Represented by Amount in Row (11)
Less than 1%
(14) Type of Reporting Person (See Instructions)
IN
* But See Item 5.
5
<PAGE>
13D
CUSIP No. 912084-10-0
1) Names of Reporting Person
S.S. of I.R.S. Identification No. of Above Person
Paul M. Bass, Jr.
2) Check the Appropriate Box if a Member of a Group (a) /X/
(See Instructions) (b) / /
3) SEC Use Only
4) Source of Funds (See Instructions)
PF
5) Check if Disclosure of Legal Proceedings is / /
Required Pursuant to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization
United States of America
Number of Shares (7) Sole Voting Power--None
Beneficially Owned by
Each Reporting Person (8) Shared Voting Power--189,290
With*
(9) Sole Dispositive Power--None
(10) Shared Dispositive Power--189,290
(11) Aggregate Amount Beneficially Owned by Each Reporting
Person*--189,290
(12) Check box if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions)
(13) Percent of Class Represented by Amount in Row (11)--6.2%
(14) Type of Reporting Person (See Instructions)--IN
* But See Item 5.
6
<PAGE>
13D
CUSIP No. 912084-10-0
1) Names of Reporting Person
S.S. of I.R.S. Identification No. of Above Person
Michael J. Marz
2) Check the Appropriate Box (a) /X/
if a Member of a Group (b) / /
(See Instructions)
3) SEC Use Only
4) Source of Funds (See instructions)
PF
5) Check if Disclosure of Legal Proceedings is Required Pursuant
to Items 2(d) or 2(e)
(6) Citizenship or Place of Organization
United States of America
Number of Shares (7) Sole Voting Power--None
Beneficially Owned by
Each Reporting Person (8) Shared Voting Power--182,290
With*
(9) Sole Dispositive Power--None
(10) Shared Dispositive Power--182,290
(11) Aggregate Amount Beneficially Owned by Each Reporting Person*
182,290
(12) Check box if the Aggregate Amount in Row (11) Excludes Certain
Shares (See Instructions)
(13) Percent of Class Represented by Amount in Row (11)
6.0%
(14) Type of Reporting Person (See Instructions)
IN
* But See Item 5.
7
<PAGE>
Item 1. Security and Issuer.
This Amendment No. 2 to Schedule 13D (the "Statement") relates to the
common stock, par value $.02 per share (the "Shares"), of U.S. Intec, Inc., a
Texas corporation ("U.S. Intec"). The Shares are registered under Section 12(b)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The
principal executive offices of U. S. Intec are located at 1212 Brai Drive, Port
Arthur, Texas 77643. This Statement amends and restates in its entirety the
Statement on Schedule 13D filed by First Southwest Company, a Texas corporation
(the "Company"), and certain of its affiliates on January 27, 1995, as amended
by Amendment No. 1 to Schedule 13D filed on February 24, 1995.
Item 2. Identity and Background.
This Statement is filed by the Company, Utley Group II Ltd., a Texas
limited partnership and an indirect owner of the Company ("Utley Ltd."), Hill A.
Feinberg, an individual residing in Dallas, Texas and a director and Chief
Executive Officer of the Company, Debra J. Feinberg, an individual residing in
Dallas, Texas and the wife of Mr. Feinberg, Paul M. Bass, Jr., an individual
residing in Dallas, Texas and a director and Vice Chairman of the Company, and
Michael J. Marz, Managing Director of the Company. The Company, Utley Ltd., Mr.
Feinberg, Mrs. Feinberg, Mr. Bass and Mr. Marz are collectively referred to
herein as the "Reporting Persons". The Reporting Persons may constitute a
"group" within the meaning of Rule 13d-5(b)(1) promulgated pursuant to the
Exchange Act.
The Company's principal business is as a diversified investment banking
firm providing service in the areas of public, corporate, private, and merchant
banking; funds management; underwriting and trading of debt and equity
securities; institutional sales; clearing and other related investment banking
activities. The principal executive offices of the Company are located at 1700
Pacific Avenue, Suite 500, Dallas, Texas 75201. The Company is currently engaged
as a financial advisor to U.S. Intec.
First Southwest Holdings, Inc., a Delaware corporation ("First Southwest
Holdings"), controls the Company and beneficially owns 100% of the outstanding
capital stock of the Company. First Southwest Holdings was formed to act as a
holding company to hold the stock of the Company. First Southwest Partners Ltd.,
a Texas limited partnership formerly known as UFL Group Ltd. ("First Southwest
Partners"), controls First Southwest Holdings and beneficially owns a majority
of the voting stock of First Southwest Holdings. The principal business of First
Southwest Partners is to hold the stock of First Southwest Holdings. First
Southwest Management, Inc., a Texas corporation formerly known as UFL
Management, Inc. ("First Southwest Management"), is the sole general partner of
First Southwest Partners. First Southwest Management's principal business is to
serve as the general partner of First Southwest Partners. Because under Section
13(d) of the Exchange Act First Southwest Management may be deemed to be the
person ultimately in control of the Company, information is included in this
Statement regarding First Southwest Management. First Southwest Management is
ultimately controlled by Mr. Feinberg and Utley Ltd.
Utley Ltd., a Texas limited partnership, is principally engaged in the
business of purchasing and selling securities for investment purposes. Utley
Group Incorporated, a Texas corporation ("Utley Corp."), is the sole general
partner of Utley Ltd. The principal business of Utley Corp. is to serve as the
general partner of Utley Ltd. Robert K. Utley, III, an individual residing in
Dallas, Texas, who serves as a director of the Company and as Chairman and Chief
Executive Officer of First Southwest Holdings, controls Utley Corp. Mr. Utley is
the sole director and serves as the President and sole executive officer of
Utley Corp.
Mrs. Feinberg's principal occupation is as a commercial real estate agent
and her business address is 3131 Maple Avenue 14-E, Dallas, Texas 75201. Mrs.
Feinberg is a citizen of the United States of America.
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Attached as Schedule I hereto and incorporated herein by reference is a
list of (i) all executive officers and directors of the Company and First
Southwest Management and (ii) the business address and principal occupation or
employment of each individual listed thereon. All such individuals are citizens
of the United States of America.
During the last five years, none of the Reporting Persons and, to the best
of such Reporting Persons' knowledge, none of the other persons with respect to
whom information is given in response to this Item 2, has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to the terms and conditions of the Stock Purchase Agreement, dated
October 27, 1994 (the "Stock Purchase Agreement"), Roofin S.A. Holding, a
Luxembourg corporation ("Roofin"), agreed to sell 845,290 Shares held by Roofin
to a joint venture owned by Danny J. Adair, the President and Chief Executive
Officer of U.S. Intec. Subsequent to the execution of such Stock Purchase
Agreement, Mr. Adair assigned the right to purchase 398,790 of such Shares to
the Company. On January 20, 1995, the Company paid Roofin $6.27 per Share in
cash against delivery of 398,790 Shares plus expenses. In addition, on January
12, 1995, U.S. Intec, Mr. Adair, the Company and certain other purchasers of the
Shares entered into a Registration Agreement (the "Registration Agreement")
pursuant to which U.S. Intec granted registration rights to the Company and such
other purchasers of the Shares. The Registration Agreement is attached hereto as
Exhibit A and is incorporated herein by reference in its entirety.
Pursuant to the terms of the Registration Agreement, U.S. Intec registered
the Shares with the Securities and Exchange Commission pursuant to a Form S-3,
Registration No. 33-88528, effective February 23, 1995. On February 24, 1995,
subsequent to the effectiveness of such registration, the Company sold, in the
ordinary course of its business, 150,000 of such Shares to clients to whom the
Company provides financial advisory services but who are not affiliated with the
Company. In addition, on February 24, 1995 the Company sold, in the ordinary
course of its business, 7,500 of such Shares to Mrs. Feinberg and an additional
69,000 of such Shares to employees of the Company and their affiliates,
including 25,000 of such Shares to Utley Ltd., 20,000 of such Shares to Mr.
Feinberg, 10,000 of such Shares to Mr. Bass and 3,000 of such Shares to Mr.
Marz. The transfer of the 219,500 Shares was at a price of $6.39 per Share.
Item 4. Purpose of Transaction.
The Reporting Persons purchased the Shares to acquire a significant equity
position in U.S. Intec. On September 14, 1995, the Reporting Persons executed a
shareholders agreement (the "Shareholders Agreement") with G-I Holdings Inc., a
Delaware corporation ("Parent"), and USI Acquisition Company, a Texas
corporation and wholly owned subsidiary of Parent ("Sub"), pursuant to which
each of the Reporting Persons as well as the other shareholders of U.S. Intec
who are parties thereto (collectively the "Selling Shareholders") agreed to
validly tender (and not to withdraw) pursuant to and in accordance with the
terms of a tender offer (the "Offer") as may be commenced by Sub at a price not
less than $9.05 per Share, the number of Shares beneficially owned by and set
forth opposite such Reporting Person's name on Schedule II hereto. The tender of
Shares by the Selling Shareholders in accordance with the terms of such
Shareholders Agreement is contingent upon certain conditions specified therein,
including the condition that Sub has exercised its option to purchase certain
Shares from the Selling Shareholders prior to the termination date of the Merger
Agreement. The Shareholders Agreement was entered into by the Selling
Shareholders in connection with the Merger Agreement,
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<PAGE>
dated September 15, 1995, among U.S. Intec, Parent and Sub. The Selling
Shareholders further have agreed that the transfer to Sub in the Offer of their
Shares will pass to and unconditionally vest in Purchaser good and valid title
to such Shares, free and clear of all claims, liens, restrictions, security
interests, pledges, limitations and other encumbrances.The Shareholders
Agreement is filed as Exhibit B to this Statement and is incorporated herein by
reference. The terms and conditions of the Shareholders Agreement are more fully
described in Item 6 herein.
If for any reason the transactions contemplated by the Merger Agreement do
not occur and the Reporting Persons continue to own Shares, the Reporting
Persons intend to continue to evaluate the business and prospects of U.S. Intec
and may in the future make known to the management of U.S. Intec their views, as
they develop, with respect to U.S. Intec's policies and decisions. Depending on
their evaluation of U.S. Intec, other investment opportunities, market
conditions, and such other factors as they may deem material, one or more of the
Reporting Persons may seek to acquire additional Shares in the open market, in
private transactions, or otherwise, or may dispose of all or a portion of the
Shares presently held or hereafter acquired. Subject to their continuing
evaluation of the factors described above, the Reporting Persons may seek to
influence the policies and management of U.S. Intec by seeking to meet with its
management and/or representatives of its Board of Directors in order to discuss
various alternatives with the intent of enhancing shareholder value. Such
discussions may include, but are not limited to, requesting representation on
the Board of Directors of U.S. Intec, suggesting that U.S. Intec review
alternative capital structures, proposing a going private transaction or
business combination consistent with the goals of both management and
shareholders, or making other proposals which the Reporting Persons may from
time to time wish to present to the management of U.S. Intec. The Reporting
Persons are not contemplating taking any actions which the Board of Directors of
U.S. Intec opposes.
Except as stated above, the Reporting Persons have not formulated any plans
or proposals of the type referred to in clauses (a) through (j) of Item 4 of the
Schedule 13D, although they reserve the right to formulate such plans or
proposals in the future.
Item 5. Interest in Securities of the Issuer.
(a) According to the Quarterly Report on Form 10-Q of U.S. Intec for its
quarter ended June 30, 1995, U.S. Intec had 3,040,911 Shares outstanding as of
June 30, 1995. As of the date hereof, the Reporting Persons may be deemed,
pursuant to Rule 13d-3, to own beneficially an aggregate of 244,790 Shares,
representing approximately 8.0% of the outstanding Shares. The Company is the
beneficial owner of 179,290 Shares (or 5.9% of all Shares outstanding). Each of
Mr. Utley, Utley Ltd., Mr. Feinberg, Mr. Bass and Mr. Marz may be deemed,
pursuant to Rule 13d-3, to own beneficially 179,290 Shares beneficially owned by
the Company. Accordingly, Utley Ltd. and Mr. Utley, as the controlling person of
Utley Ltd., would be deemed to beneficially own 204,290 Shares (or 6.7% of all
Shares outstanding), Mr. Feinberg would be deemed to beneficially own 199,290
Shares (or 6.6% of all Shares outstanding), Mr. Bass would be deemed to
beneficially own 189,290 Shares (or 6.2% of all Shares outstanding), and Mr.
Marz would be deemed to beneficially own 182,290 Shares (or 6.0% of all Shares
outstanding). Mrs. Feinberg would be deemed to beneficially own 7,500 Shares,
representing less than 1.0% of all Shares outstanding.
(b) As a result of executing the Shareholders Agreement, the Company shares
with Parent and Sub the power to vote or direct the vote and to dispose or to
direct the disposition of the Shares beneficially owned by it. In addition,
Utley Ltd., Messrs. Feinberg and Utley, by virtue of their indirect ownership
interest in the Company and, with respect to Messrs. Feinberg, Utley, Bass and
Marz, by virtue of their positions as directors and executive officers of the
Company, may be deemed, for purposes of determining beneficial ownership
pursuant to Rule 13d-3, to own beneficially the Shares owned beneficially by the
Company. Further, the persons listed as directors of the Company and First
Southwest Management on Schedule I attached hereto may be deemed, for purposes
of determining
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beneficial ownership pursuant to Rule 13d-3, to own beneficially the Shares
owned beneficially by the Company.
As a result of executing the Shareholders Agreement, Utley Ltd. shares with
Parent and Sub the power to vote or direct the vote and to dispose or to direct
the disposition of the Shares beneficially owned by it. Because the limited
partnership agreement governing Utley Ltd. provides that all decisions
concerning the voting and disposition of securities owned by Utley Ltd. will be
made by Utley Corp., as its sole general partner, Utley Corp. is thereby able to
control all decisions concerning the voting and disposition of the Shares owned
by Utley Ltd. Mr. Utley and trusts formed for the benefit of Mr. Utley's family
own all of the outstanding capital stock of Utley Corp. By virtue of his direct
and indirect ownership of Utley Corp. and his positions as sole director and
sole executive officer of Utley Corp., Mr. Utley may be deemed, for purposes of
determining beneficial ownership pursuant to Rule 13d-3, to own the Shares owned
by Utley Ltd.
As a result of executing the Shareholders Agreement, Mr. Feinberg shares
with Parent and Sub the power to vote or direct the vote and to dispose or to
direct the disposition of the Shares owned by him. As a result of executing the
Shareholders Agreement, Mrs. Feinberg shares with Parent and Sub the power to
vote or direct the vote and to dispose or to direct the disposition of the
Shares owned by her. As a result of executing the Shareholders Agreement, Mr.
Bass shares with Parent and Sub the power to vote or direct the vote and to
dispose or to direct the disposition of the Shares owned by him. As a result of
executing the Shareholders Agreement, Mr. Marz shares with Parent and Sub the
power to vote or direct the vote and to dispose or to direct the disposition of
the Shares owned by him.
(c) None of the Reporting Persons nor, to the best knowledge of such
Reporting Persons, any of the other persons with respect to whom information is
given in response to Item 2 hereof, has effected transactions in the Shares
during the past sixty days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer.
The following summary of the material terms of the Registration Agreement
is qualified in its entirety by reference to the Registration Agreement, a copy
of which is attached hereto as Exhibit A and incorporated herein by reference.
In consideration of the purchase of 545,290 Shares by the Company and the
other purchasers identified in the Registration Agreement (the "Purchasers"),
U.S. Intec agreed to file a registration statement on Form S-3 with respect to
the offering and sale of such Shares by Purchasers on a delayed or continuous
basis. U.S. Intec agreed to indemnify Purchasers for any losses as a result of
any misstatements or omissions contained in any such registration statement.
Purchasers agreed to indemnify U.S. Intec for any losses as a result of any
misstatement or omissions contained in any such registration statement if such
misstatement or omission was made in reliance upon information provided by such
Purchasers.
The summary below of the terms of the Shareholders Agreement is qualified
in its entirety by reference to the Shareholders Agreement, a copy of which is
attached hereto as Exhibit B and incorporated herein by reference. See also
related discussion in Item 4.
Parent and Sub have entered into the Shareholders Agreement with the
Selling Shareholders who own an aggregate of 1,838,811 (or 60.4%) of the
outstanding Shares. Among such Selling Shareholders are Reporting Persons, who
currently have beneficial ownership of an aggregate of 244,790 (or
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<PAGE>
approximately 8.0%) of the outstanding Shares. To induce Parent and Sub to enter
into the Merger Agreement, the Selling Shareholders have granted to Parent
irrevocable options (each a "Share Option" and collectively, the "Share
Options") to purchase their respective Shares (the "Option Shares") at a
purchase price per Share of not less than $9.05 per share (plus any additional
consideration per Share which, consistent with the provisions of Rule 14d-10
under the Exchange Act, may be paid to any other shareholder of U.S. Intec
pursuant to the Offer or the Merger), if (i) all waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the
regulations thereunder (the "HSR Act"), required for the purchase of the Option
Shares shall have expired or been waived and (ii) there shall not be in effect
any preliminary or final injunction or other order of any court or public or
governmental authority prohibiting such purchase. Subject to certain conditions
specified in the Shareholders Agreement, such right is exercisable in whole (but
not in part) until the later of (x) the 180th day next following September 14,
1995 or (y) the first to occur of (i) consummation of the Merger or (ii)
termination of the Merger Agreement in accordance with its terms (the
"Termination Date"). The right of Parent or Sub to exercise the Share Options
will expire on the Termination Date. If Parent elects to exercise the Share
Options, Parent must send a written notice (the "Notice") to the Selling
Shareholders identifying the place and date (not less than two nor more than 20
business days from the date of the Notice) for the closing of such purchase. If
Parent exercises one Share Option, it must exercise all Share Options.
In addition, the Selling Shareholders have agreed that, if Parent exercises
the Share Options pursuant to the Shareholders Agreement, Parent, within 30
calendar days after the date of such exercise, will be obligated to offer to all
other shareholders of U.S. Intec an opportunity to sell their Shares to Parent
upon the equivalent terms and conditions provided with respect to the exercise
of the Share Options.
The Selling Shareholders have agreed that during the period commencing on
September 14, 1995 and continuing until the Termination Date, at any meeting of
U.S. Intec's shareholders, however called, or in connection with any written
consent of the U.S. Intec's shareholders, the Selling Shareholders will vote (or
cause to be voted) the Shares held of record or beneficially owned by them (i)
in favor of the Merger, the execution and delivery by U.S. Intec of the Merger
Agreement and the approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement and the Shareholders Agreement, and any
actions required in furtherance thereof; (ii) against any action or agreement
that would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of U.S. Intec under the Merger
Agreement or the Shareholders Agreement (after giving effect to any materiality
or similar qualifications contained therein); and (iii) except as otherwise
agreed to in writing in advance by Parent, against the following actions (other
than the Merger and the transactions contemplated by the Merger Agreement): (A)
any extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving U.S. Intec or its subsidiaries; (B) a sale,
lease or transfer of a material amount of assets of U.S. Intec or its
subsidiaries or a reorganization, recapitalization, dissolution or liquidation
of U.S. Intec or its subsidiaries; and (C)(1) any change in a majority of the
persons who constitute the Board of Directors of U.S. Intec; (2) any change in
the present capitalization of U.S. Intec or any amendment of U.S. Intec's
articles of incorporation or bylaws; (3) any other material change in the
Company's corporate structure or business; or (4) any other action which, in the
case of each of the matters referred to in clauses C(1), (2), or (3) above, is
intended, or reasonably could be expected, to impede, interfere with, delay,
postpone or materially adversely affect the Merger and the transactions
contemplated by the Shareholders Agreement and the Merger Agreement. The Selling
Shareholders further have agreed not to enter into any agreement or
understanding with any person or entity the effect of which would be
inconsistent with or violative of the provisions and agreements described above.
The Selling Shareholders have made certain customary representations,
warranties and covenants, including with respect to (i) their ownership of the
Shares, (ii) their authority to enter into and perform their obligations under
the Shareholders Agreement, (iii) noncontravention, (iv) the receipt of
requisite
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governmental consents and approvals, (v) the absence of liens and encumbrances
on and in respect of their Shares, (vi) restrictions on the transfer of their
Shares, (vii) the solicitation of Acquisition Proposals, and (viii) the waiver
of their appraisal rights. The term "Acquisition Proposal" means any of the
following transactions (other than transactions among U.S. Intec, Parent and Sub
contemplated in the Merger Agreement) involving U.S. Intec or any of its
subsidiaries: (i) any merger, consolidation, share exchange, recapitalization,
business combination or other similar transaction; (ii) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition of the assets of U.S.
Intec and its subsidiaries outside of the ordinary course of business; (iii) any
tender or exchange offer for the outstanding capital shares of U.S. Intec or the
filing of a registration statement under the Securities Act of 1933, as amended,
in connection therewith; or (iv) any public announcement of a proposal, plan or
intention to do any of the foregoing or any agreement to engage in any of the
foregoing.
Parent has agreed to indemnify, defend and hold harmless each Selling
Shareholder against all losses, claims, damages, costs, expenses (including
reasonable attorneys fees and expenses), liabilities, judgments or amounts that
are paid in settlement with the approval of the indemnifying party (which
approval shall not unreasonably be withheld) of, or in connection, with any
threatened or actual claim, action, suit, proceeding or investigation based in
whole or in part on or arising in whole or in part out of the fact that such
person entered into the Shareholders Agreement, other than as a result of, or
relating to, any claim asserted by a Selling Shareholder. In this connection,
Parent has agreed to pay to the foregoing indemnified parties expenses in
advance of the final disposition of any such action or proceeding to the fullest
extent permitted by law. Such indemnification shall terminate and no longer be
effective upon notification from Parent delivered to the Selling Shareholders
that the Share Options have been terminated.
Danny J Adair, U.S. Intec's President and Chief Executive Officer (and
holder of approximately 26.8% of the outstanding Shares) has (i) acknowledged in
the Shareholders Agreement that pursuant to a certain Debt Restructuring and
Non-Competition Agreement, dated as of September 28, 1990, as amended, U.S.
Intec holds the executive's secured promissory note (the "Note") in the
principal amount of $2,803,000 (together with all accrued and unpaid interest
thereon, the "Loan Amount") and (ii) agreed that any amount to be paid to him in
the Offer or pursuant to the Shareholders Agreement in respect of his Shares
shall be net of the Loan Amount and that the Loan Amount shall instead be paid
to the Company in full satisfaction of his obligations under the Note.
Other than as provided therein, the Shareholders Agreement will terminate
by its terms upon the Termination Date.
The Reporting Persons fully intend to tender their Shares in accordance
with the terms of the Shareholders Agreement. In the event, however, that the
Offer and Merger fail to transpire pursuant to the terms of the Merger
Agreement, the Reporting Persons will retain beneficial ownership of their
aggregate 244,790 Shares.
Item 7. Materials to be Filed as Exhibits.
<TABLE><CAPTION>
<S> <C>
EXHIBIT A --Registration Agreement, dated as of January 12, 1995, among Roofin S.A. Holding, Danny J.
Adair, the Company, 490 Park Joint Venture, Umphrey Family Limited Partnership and U.S. Intec.
EXHIBIT B --Shareholders Agreement, dated as of September 14, 1995, among Parent, Sub, the Company, Umphrey
Family Limited Partnership, 490 Park Joint Venture, Danny J. Adair, Albert E. Brammer, Austin
W. Gonsoulin, Robert G. Hoag, Ken D. Latiolais, S. Craig Noble, Richard Earl Purkey, Sr., J.
Roane Ruddy, Hill A. Feinberg, Debra J. Feinberg, Utley Group II, Paul M. Bass, Jr. and Michael
J. Marz.
</TABLE>
13
<PAGE>
CUSIP No. 912084-10-0
13D
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Reporting Persons have duly caused this Amendment No. 2 to Schedule 13D to be
signed on their behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, on the 21st day of September, 1995. The power of attorney
provided to Hill A. Feinberg and Robert K. Utley, III, as attorneys-in-fact of
the undersigned, as filed in Amendment No. 1 to Schedule 13D dated February 24,
1995, is hereby incorporated by reference. After reasonable inquiry and to the
best of knowledge and belief of the undersigned, the undersigned certifies that
the information set forth in this statement is true, complete and correct.
FIRST SOUTHWEST COMPANY
By: /s/ THOMAS D. WILLIAMS
..................................
Thomas D. Williams
Managing Director and General
Counsel
UTLEY GROUP II LTD.
By: /s/ ROBERT K. UTLEY, III
..................................
Robert K. Utley, III
President of Utley Group, Inc.,
General Partner
By: HILL A. FEINBERG*
..................................
Hill A. Feinberg
By: DEBRA J. FEINBERG*
..................................
Debra J. Feinberg
By: PAUL M. BASS, JR.*
..................................
Paul M. Bass, Jr.
By: MICHAEL J. MARZ*
..................................
Michael J. Marz
*By: /s/ ROBERT K. UTLEY III
.................................
Robert K. Utley, III
Attorney-in-fact
14
<PAGE>
13D
CUSIP No. 912084-10-0
SCHEDULE I
Information Concerning Executive Officers and Directors
of First Southwest Company
Unless otherwise indicated, the business address of each individual and
corporation listed below is 1700 Pacific, Suite 500, Dallas, Texas 75201.
<TABLE><CAPTION>
Board of Directors of
FIRST SOUTHWEST COMPANY
Name and Principal Employment
Business Address and Employer
- -------------------------------------------------------- --------------------------------------------------------
<S> <C>
Paul M. Bass, Jr. Vice Chairman of First Southwest Company Chairman & CEO
of First Southwest Asset Management, Inc.
Hill A. Feinberg Chairman & CEO of First Southwest Company
Michael J. Marz Managing Director of First Southwest Company
John H. Massey Chairman & CEO of Life Partners Group, Inc.
7887 East Belleview Ave.
Englewood, CO 80111-6093
Frank J. Medanich Executive Director of First Southwest Company
Dennis K. Streit Treasurer of First Southwest Company
Robert K. Utley, III Chairman & CEO of First Southwest Holdings, Inc.
Thomas D. Williams Managing Director, Chief Administrative Officer &
General Counsel of First Southwest Company
<CAPTION>
Board of Directors of
FIRST SOUTHWEST MANAGEMENT, INC.
Name and Principal Employment
Business Address and Employer
- -------------------------------------------------------- --------------------------------------------------------
<S> <C>
Hill A. Feinberg Chairman & CEO of First Southwest Company President of
First Southwest Management, Inc.
Robert K. Utley, III Chairman & CEO of First Southwest Holdings, Inc.
Chairman of First Southwest Management, Inc.
</TABLE>
15
<PAGE>
13D
CUSIP No. 912084-10-0
SCHEDULE II
Name of Stockholder Number of Shares Owned
- ------------------- ------------------------
1. First Southwest Company 179,290
2. Hill A. Feinberg 20,000
3. Debra J. Feinberg 7,500
4. Utley Group II 25,000
5. Paul M. Bass, Jr. 10,000
6. Michael J. Marz 3,000
16
<PAGE>
13D
CUSIP No. 912084-10-0
<TABLE><CAPTION>
EXHIBIT INDEX
Exhibit Page
------- ----
<S> <C> <C>
EXHIBIT A --Registration Agreement, dated as of January 12, 1995, among Roofin S.A. Holding, Danny
J. Adair, the Company, 490 Park Joint Venture, Umphrey Family Limited Partnership and
U.S. Intec.
EXHIBIT B --Shareholders Agreement, dated as of September 14, 1995, among Parent, Sub, the Company,
Umphrey Family Limited Partnership, 490 Park Joint Venture, Danny J. Adair, Albert E.
Brammer, Austin W. Gonsoulin, Robert G. Hoag, Ken D. Latiolais, S. Craig Noble, Richard
Earl Purkey, Sr., J. Roane Ruddy, Hill A. Feinberg, Debra J. Feinberg, Utley Group II,
Paul M. Bass, Jr. and Michael J. Marz.
</TABLE>
17
EXHIBIT A
<PAGE>
REGISTRATION AGREEMENT
REGISTRATION AGREEMENT ("Agreement") dated as of January 12, 1995, by
and among U.S.INTEC,INC., a Texas corporation (the "Company"), DANNY J. ADAIR,
President of the Company ("Adair"), and the individuals and the entities named
on the signature pages hereto (each referred to herein individually as a
"Purchaser" and together as the "Purchasers").
WHEREAS, Roofin, S.A. Holding ("Roofin") a founding shareholder
of the Company, is the owner of 845,290 shares (the "Shares") of common stock
par value $.02 per share of the Company (the "Company Common Stock"), which are
"restricted securities" as defined in Rule 144 under the Securities Act of
1933, as amended (the "Act"); and
WHEREAS, the Company has heretofore agreed that, upon request, it will
register all of the Shares held by Roofin or any of its affiliates or assignees
at the Company's sole expense; and
WHEREAS, pursuant to a Stock Purchase Agreement dated October 27, 1994
(the "Stock Purchase Agreement"), Roofin has agreed to sell the Shares to a
joint venture controlled by Adair for a cash price of approximately $5,300,000,
or $6.27 per share, plus closing costs; and
WHEREAS, Adair's right under the aforementioned Stock Purchase
Agreement, together with the registration rights held by Roofin, are fully
assignable; and
WHEREAS, the Board of Directors of the Company has determined that it
would not be in the interest of the Company and its shareholders for the Company
to purchase the Shares pursuant to the Stock Purchase Agreement; and
WHEREAS, Adair has assigned the rights under the Stock Purchase
Agreement as to a portion of the Shares to the Purchasers and each Purchaser is
willing to exercise those rights with respect to the number of Shares set forth
opposite his or its name on the signature pages hereto on the condition that, as
assignees of Roofin's registration rights with respect to the Shares and that,
accordingly, the Company register the Shares under the Act to permit resales by
the Purchasers following consummation of the transactions provided for the Stock
Purchase Agreement; and
WHEREAS, as assignees of Roofin, the Purchasers will be entitled to
have the Shares registered under the Act at the Company's sole expense; and
WHEREAS, the parties wish to set forth in detail the terms upon which
the Company will register the Shares purchased from Roofin by the Purchasers;
<PAGE>
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, the parties hereto agrees as
follows:
1. Registration.
-------------
(a) In consideration of the Purchasers' willingness to purchase
the Shares pursuant to the Stock Purchase Agreement, and subject to the
performance by each Purchaser of the covenants set forth in Section 2 hereof and
the Purchasers' warranties set forth in Section 5 hereof, the Company shall
promptly prepare and file with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (the "Registration
Statement") with respect to the offering and sale of the Shares by the
Purchasers on a delayed or continuous basis pursuant to Rule 415 under the Act,
and shall use diligent efforts to cause the Registration Statement to become
effective as soon as possible after the filing thereof so as to permit the
secondary resale of the Shares by the Purchasers. As used herein, the term
"Registration Statement" means the Registration Statement, including exhibits
and financial statements and schedules and documents incorporated by reference
therein, as amended, when it becomes effective under the Act and, in the case of
the references to the Registration Statement as of a date subsequent to the
effective date, as amended or supplemented as of such date. As used herein,the
term "Prospectus" means the prospectus included in the Registration Statement as
of the date it becomes effective under the Act and, in the case of references to
the Prospectus as of a date subsequent to the effective date of the Registration
Statement, as amended or supplemented as of such date, including all documents
incorporated by reference therein, as amended, and each prospectus supplement
relating to the offering and sale of any of the Shares.
(b) The Company will use its diligent efforts to cause the
Registration Statement to remain effective, and to file with the Commission such
amendments and supplements as may be necessary to keep the Prospectus current
and compliance in all material respects with the Act, until the sooner to occur
of the following events: (i) the expiration of a three-year period following
the date of this Agreement; and (ii) the sale of all of the Shares covered by
the Registration Statement, whether pursuant to the Registration Statement or
otherwise. Notwithstanding the foregoing, the Company shall not be required to
keep the Registration Statement effective, and the Purchasers shall not
distribute any Shares pursuant thereto if, in the written opinion of counsel to
the Company addressed to the Purchasers and to the transfer agent and registrar
for the Company Common Stock, the Shares may be sold by the Purchasers without
registration or restriction.
(c) The Company shall furnish to each Purchaser a conformed copy of
the Registration Statement as declared effective by the Commission and of each
post-effective amendment thereto, and such number of copies of the final
Prospectus and of each post-effective amendment or supplement thereto
as may reasonably be required to facilitate the distribution of the Shares.
Promptly after the Registration Statement has been declared effective by the
Commission, the Company shall furnish to the Purchasers the written opinion
of counsel to the Company to the effect that (i) the Registration Statement
is effective under the Act and to the
-2-
<PAGE>
best knowledge of such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or are threatened by the Commission and (ii)
the Shares may be sold without further registration under the Act in accordance
with the plan of distribution set forth in such Registration Statement.
(d) The Registration Statement shall be prepared by the Company in
accordance with the Act and the rules and regulations promulgated thereunder.
The section of the Registration Statement entitled "Selling Shareholders" shall
be prepared in accordance with the requirements of Item 507 of Regulation S-K
promulgated by the Commission under the Act ("Regulation S-K") and shall be
based upon the information provided by the Purchasers to the Company pursuant to
Section 4(a). The section of the Registration Statement entitled "Plan of
Distribution" shall be prepared in accordance with the requirements of Item
508(c)(2) of Regulation S-K.
(c) Promptly after having been notified by any Purchaser of such
Purchaser's intention to distribute Shares in a manner contemplated by the
Registration Statement in the section entitled "Plan of Distribution" and after
having received the information required to be delivered to the Company by such
Purchaser as provided in Section 3 (c), the Company will, if necessary, (i)
prepare a supplement to the Prospectus based upon the information so provided
and file the same with the Commission pursuant to Rule 424(b) under the Act and
(ii) register or qualify the Shares to be sold under the securities or blue sky
laws of Texas and New York and of such other jurisdictions in the United States
as such Purchaser shall reasonably request; provided however, that the Company
-------- -------
shall in no event be required to qualify to do business as a foreign corporation
or as a dealer in any jurisdiction where it is not so qualified, to conform its
capitalization or the composition of its assets at the time to the securities or
blue sky laws of any such jurisdiction, to execute or file any general consent
to service of process under the laws of any jurisdiction, to take any action
that would subject it to service of process in suits other than those arising
out of the offer and sale of Shares, or to subject itself to taxation in any
jurisdiction where it has not theretofore done so.
2. Expenses of Registration. All expenses in connection with the
------------------------
Registration Statement, any qualification or compliance with the federal or
state laws required in connection therewith, and the distribution of the Shares,
shall, as between the Purchasers and the Company, be borne as follows:
(a) The Company shall pay and be responsible for the
registration fee payable under the Act, blue sky fees and expenses if applicable
(subject to the limitations set forth in Section 1 (e)), and all fees and
disbursements of the Company's counsel and accountants. The Company will not
engage the services of a printer with respect to the Registration Statement or
the Prospectus, but will arrange for the photocopying thereof and bear the
photocopying costs.
(b) The purchasers shall pay all fees and disbursements of their
own counsel and advisers, all stock transfer fees (including the cost of all
transfer tax stamps) or
-3-
<PAGE>
expenses, if any, and all other expenses (including brokerage discounts,
commissions and fees) related to the distribution of the Shares that have not
expressly been assumed by the Company as set forth above.
3. Purchasers' Covenants Regarding the Shares. Each Purchaser
------------------------------------------
covenants and agrees with the Company that:
(a) Such Purchasers will cooperate with the Company in
connection with the preparation of the Registration Statement, and for so long
as the Company is obligated to keep the Registration Statement effective, such
Purchaser will provide to the Company, in writing, for use in the Registration
Statement, all information regarding such Purchaser and such other information
as may be necessary to enable the Company to prepare the Registration Statement
and Prospectus covering the Shares and to maintain the currency and
effectiveness thereof.
(b) During such time as such Purchaser may be engaged in a
distribution of the Shares, such Purchaser will comply with Rules 10b-2, 10b-6
and 10b-7 promulgated under the Securities Exchange Act of 1934 (the "Exchange
Act") and pursuant thereto will, among other things: (i) not engage in any
stabilization activity in connection with the securities of the Company in
contravention of such Rules; (ii) distribute the Shares owned by such Purchaser
solely in the manner described in the Registration Statement; (iii) cause to be
furnished to each agent or broker-dealer to or through whom the Shares owned by
such Purchaser may be offered, or to the offeree if an offer is made directly by
the Purchaser, such copies of the Prospectus (as amended and supplemented to
such date) and documents incorporated by reference therein as may be required by
such agent, broker-dealer or offeree; and (iv) not bid for or purchase any
securities of the Company or attempt to induce any person to purchase any
securities of the Company other than as permitted under the Exchange Act.
(c) On notice from the Company that it requires, under
applicable law, the suspension by such Purchaser of the distribution of any of
the Shares, then such Purchaser shall suspend distributing Shares until such
time as the Company notifies such Purchaser that distribution of the Shares may
recommence; provided that the period of such suspension shall not exceed 10 days
unless such Purchaser has been furnished a written opinion of counsel to the
Company stating the reason or reasons why such suspension must be for a longer
period.
4. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each
Purchaser, its directors and officers (if any) and each person (if any) who
controls such Purchaser within the meaning of either the Act or the Exchange Act
(collectively, the "Purchaser Indemnified Parties") from and against any losses,
claims, damage or liabilities, joint or several, to which such Purchaser
Indemnified Parties may become subject, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) are based upon any untrue
statement or
-4-
<PAGE>
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus, or any omission or alleged omission to state
therein 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; and subject to Section 4(c), the Company will reimburse such
Purchaser Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim damage or liability as such expenses are incurred; provided however, that
-------- -------
the Company will not indemnify or hold harmless any Purchaser Indemnified Party
from or against any loss, claim, damage, liability or expense (i) that arises
out of or is based upon any violation of any federal or state securities laws,
rules or regulations committed by such Purchaser Indemnified Party (or any
agent, broker-dealer or underwriter engaged by them) or (ii) if the untrue
statement, omission or allegation thereof upon which such losses, claims,
damages, liabilities or expenses are based (x) was made in reliance upon and in
conformity with the information provide by such Purchaser specifically for use
or inclusion in the Registration Statement, or (y) was made in any Prospectus
used after such time as the Company advised such Purchaser that the filing of a
post-effective amendment or supplemental thereto was required, except the
Prospectus as so amended or supplemented or (z) was made in any Prospectus used
after such time as the obligation of the Company hereunder to keep the
Registration Statement affective and current has expired.
(b) Each Purchaser, individually and not jointly, agrees to
indemnify and hold harmless, the Company, its directors and officers and each
person, if any who controls the Company within the meaning of either Act or
Exchange Act (the "Company Indemnified Parties"), from and against any losses,
claims, damages or liabilities, joint or several, to which the Company
Indemnified Parties may become subject, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus, or any
omission or alleged omission to state therein 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, if the statement
or omission was made in reliance upon and in conformity with the information
provided in writing by such Purchaser specifically for use or inclusion in
the Registration Statement, or (ii) the use of any Prospectus after such time
as the Company has advised such Purchaser that the filing of a post-effective
amendment or supplement thereto is required, except the Prospectus as so
amended or supplemented, or (iii) the use of any Prospectus after such time
as the obligation of the Company hereunder to keep the Registration Statement
effective and current has expired, or (iv) any violation by such Purchaser or
any person who controls such Purchaser within the meaning of either the Act
or the Exchange Act (or any agent, broker-dealer or underwriter engaged by
such Purchaser or any such controlling person) of any federal or state
securities law or rule or regulation thereunder; and subject to Section 4(c),
such Purchaser will reimburse such Company Indemnified Parties for any legal
or other expenses reasonably incurred by them in connection with the
investigating or defending any such loss, claim, damage or liability as such
expenses are incurred.
(c) Each party entitled to indemnification under this Section 4
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the
-5-
<PAGE>
"Indemnifying Party") promptly after such Indemnified Party has actual knowledge
of any claim as to which indemnity may be sought, and the Indemnifying Party may
Participate at its own expense in the defense, or if it so elects, to assume the
defense of any such claim and any action or proceeding resulting therefrom,
including the employment of counsel and the payment of all expenses. The
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party from its obligations to indemnify such
Indemnified Party, except to the extent the Indemnified Party's failure to so
notify actually prejudices the Indemnifying Party's ability to defend against
such claim, action or proceeding; it being understood and agreed that the
failure to so notify the Indemnifying Party prior to the execution of a binding
settlement agreement or the entry of a judgement or issuance of an award with
respect to a claim, action or proceeding shall constitute actual prejudice to
the Indemnifying Party's ability to defend against such claim, action or
proceeding, the Indemnified Party shall have the right to employ separate
counsel in any such action or proceeding and to participate in the defense
thereof, but the fees and expenses of such separate counsel shall be such
Indemnified Party's expense unless (i) the indemnifying Party has agreed to pay
such fees and expenses or (ii) the named parties to any such action or
proceeding (including any impleaded parties) include an Indemnified Party and
the Indemnifying Party, and such Indemnified Party shall have been advised by
counsel that there may be a conflict of interest between such Indemnified Party
and the Indemnifying Party in the conduct of the defense of such action (in
which case, if such Indemnified Party notifies the Indemnifying Party that it
elects to employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not assume the defense of such action or proceeding on
such Indemnified Party's behalf, it being understood, however, that the
Indemnifying Party shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings 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 at any time for all Indemnified Parties, which firm shall be
designated in writing by such Purchaser or the Company as the case may be). No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of the Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. The Indemnifying Party shall not be liable for any settlement of
any such action or proceeding effected without its written consent, but if
settled with its written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Indemnifying Party shall
indemnify and hold harmless the Indemnified Party from any against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for under this Section 4 is
unavailable to or insufficient to hold the Indemnified Party harmless under
subparagraphs (a) or (b) above in respect of any losses, claims, damages or
liabilities referred to therein for any reason other than as specified therein,
then the Indemnifying Party shall contribute to the amount paid or payable by
such Indemnified Party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party on the hand and such Indemnified Party on the other in
connection with the statements or omissions
-6-
<PAGE>
which resulted in such losses, claims, damages or liabilities, 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 or the omission or alleged omission to state a
material fact relates to information supplied by (or omitted to be supplied by)
the Company or the Purchaser, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
the relative benefits received by each party from the sale of the Shares and any
other equitable considerations appropriate under the circumstances. The amount
paid or payable by an Indemnified Party as a result of the losses, claims,
damages or liabilities 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 defending any such action or claim.
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.
5. Representations and Warranties of the Purchasers. Each of the
------------------------------------------------
Purchasers, severally but not jointly, represents and warrants to the Company
and Adair that such Purchaser, (a) is an "accredited investor" as defined in
Rule 501 (a) under the Act; (b) except for distributions as contemplated by this
Agreement, is acquiring the Shares for its own beneficial account, for
investment purposes, and not with a view to, or for resale in connection with,
any distribution thereof; (c) understands that unless such Shares are sold in
accordance with the Plan of Distribution set forth in the Registration Statement
provided by this Agreement, they will constitute "restricted securities" as
defined in Rule 144 under the Act; (d) further understands that so long as the
Shares constitute "restricted securities", the certificates evidencing such
Shares will bear a legend to that effect; (e) has been furnished with or given
adequate access to all information concerning the Company and its business as
such Purchaser has requested; and (f) except for the number of Shares set
opposite his or its name on the signature pages hereto, does not own,
beneficially or of record, or have the right to acquire any Company Common
Stock. Each Purchaser further represents and warrants to the Company and Adair
that except as set forth in this Agreement, no officer or director of the
Company or any other person affiliated with the Company has made any
representations or warranties of any kind or nature to induce such Purchaser to
purchase any of the Shares.
6. Notices. All notices and other communications hereunder shall be
-------
in writing and shall be deemed to have been duly given if sent by hand, by
telecopy or by first-class mail, postage prepaid as follows:
(a) if to the Company or Adair
U.S. Intec, Inc.
1212 Brai Drive
Port Arthur, Texas 77643
Attention: Roane Ruddy
Chief Financial Officer
-7-
<PAGE>
(b) if to the Purchasers, at the address of each Purchaser set
forth on the signature page hereto.
7. Amendment. Any provision of this Agreement may be amended or
---------
modified in whole or in part at any time by an agreement in writing among the
parties hereto executed in the same manner as this Agreement. No consent,
waiver or similar act shall be effective unless in writing.
8. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
9. Governing Law. This Agreement shall be governed by and
-------------
interpreted in accordance with the internal laws of the State of Texas, without
giving effect to principles of conflicts of laws.
10. Assignment. No Purchaser may assign his or its rights under
----------
this Agreement without the prior written consent of the Company, except that any
Purchaser may assign its rights under this Agreement to any pledgee provided
such pledgee agrees to become bound by the terms hereof. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
U.S. INTEC, INC.
By: /s/ Danny J. Adair
-------------------------------
Danny J. Adair
President & Chief Executive Officer
/s/ Danny J. Adair
--------------------------------
Danny J. Adair, Individually
-8-
<PAGE>
No. of Shares to be Purchases: PURCHASERS:
398,790 FIRST SOUTHWEST COMPANY
By: /s/ Hill A. Feinberg
------------------------------
Hill A. Feinberg
Co-Chief Executive Officer
1700 Pacific Avenue, Suite 500
Dallas, Texas 75201-4652
81,189 490 PARK JOINT VENTURE
By: /s/ James E. Wimberley
------------------------------
General Partner
490 Park Street
Beaumont, Texas 77701
65,311 UMPHREY FAMILY LIMITED PARTNERSHIP
By: /s/ Walter Umphrey
------------------------------
General Partner
490 Park Street
Beaumont, Texas 77701
-9-
EXHIBIT B
<PAGE>
STOCKHOLDERS AGREEMENT
AGREEMENT dated September 14, 1995, among G-I HOLDINGS, INC., a Delaware
corporation ("Parent"), USI ACQUISITION COMPANY, a Texas corporation and a
direct wholly-owned subsidiary of Parent ("Sub"), and the other parties
signatory hereto (each a "Stockholder", and collectively, the "Stockholders").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, concurrently herewith, Parent, Sub and U. S. Intec, Inc., a Texas
corporation (the "Company"), have been negotiating in good faith the terms of an
Agreement and Plan of Merger; and
WHEREAS, as an inducement and a condition to continuing such negotiations,
Parent has required that the Stockholders agree, and the Stockholders have
agreed, to enter into this Agreement;
NOW,THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions. For purposes of this Agreement:
a. "Beneficially Own" or "Beneficially Ownership" with respect to any
securities (as determined pursuant to Rule 13d-3 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), including pursuant to any
agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially owned by
all of the Persons with whom such person would constitute a "group" as within
the meanings of Section 13(d)(3) of the Exchange Act.
b. "Company Common Stock" shall mean at any time the common stock, $.02
par value, of the Company.
c. "Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
2. Tender of Shares.
a. Each Stockholder hereby agrees to validly tender (and not to withdraw)
pursuant to and in accordance with the terms of such a tender offer (the
"Offer"), as may be commenced by Parent or Sub at a price not less than $9.05
per share (the "Price"), the number of shares of Company Common Stock set forth
opposite such Stockholder's name on Schedule I hereto (the "Existing Shares",
and
<PAGE>
together with any shares of Company Common Stock acquired by such Stockholder
after the date hereof and prior to the termination of this Agreement whether
upon the exercise of options, warrants or rights, the conversion of exchange of
convertible or exchangeable securities, or by means of purchase, dividend,
distribution or otherwise, the "Shares"), Beneficially Owned by him, her or it.
Each Stockholder hereby acknowledges and agrees that the Parent's or Sub's
obligation to accept for payment and pay for Shares in the Offer, including the
Shares Beneficially Owned by such Stockholder, will be subject to the terms and
conditions of the Offer.
b. The transfer by each Stockholder of his, her or its Shares to Sub in
the Offer shall pass to, and unconditionally vest in, Sub good and valid title
to the number of Shares set forth opposite such Stockholder's name on Schedule I
hereto, free and clear of all claims, liens, restrictions, security interest,
pledges, limitations and encumbrances whatsoever.
c. Each Stockholder hereby agrees to permit Parent and Sub to publish and
disclose in the offer documents relating to the Offer and his, her or its
identity and ownership of Company Common Stock and the nature of his, her or its
commitments, arrangements and understandings under this Agreement.
3. Provisions Concerning Company Common Stock. Each Stockholder hereby agrees
that during the period commencing on the date hereof and continuing until the
later of (x) 180 days from the date hereof or (y) if a Merger Agreement (as
hereinafter defined) is executed and delivered within such 180 day period, the
first to occur of (i) the closing of any merger (the "Merger") between Sub and
Company providing for the shareholders of the Company to receive the Price in
exchange for each share of Company Common Stock or (ii) the termination of any
such merger agreement (the "Merger Agreement") related thereto, (such date being
herein referenced to as the "Termination Date") at any meeting of the holders of
Company Common Stock, however called, or in connection with any written consent
of the holders of Company Common Stock, such Stockholder shall vote (or cause to
be voted) the Shares of record or Beneficially Owned by such Stockholder,
whether issued, heretofore owned or hereafter acquired, (I) in favor of the
Merger, the execution and delivery by the Company of the Merger Agreement and
the approval of the terms thereof and each of the other actions contemplated by
the Merger Agreement and this Agreement and any actions required in furtherance
thereof and hereof; (II) against any action or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or this
Agreement (after giving effect to any materiality or similar qualifications
contained therein); and (III) except as otherwise agreed to in writing in
advance by Parent, against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its Subsidiaries; (B) a sale,
<PAGE>
lease or transfer of a material amount of assets of the Company or its
Subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company of its Subsidiaries; (C) (1) any change in a majority of the
persons who constitute the board of directors of the Company; (2) any change in
the present capitalization of the Company or any amendment of the Company's
Articles of Incorporation or Bylaws; (3) any other material change in the
Company's corporate structure of business; or (4) any other action which, in the
case of each of the matters referred to in clause C(1), (2), (3) or (4), is
intended, or could reasonably be expected to, impede, interfere with, delay,
postpone, or materially adversely affect the Merger and the transactions
contemplated by this Agreement and the Merger Agreement. Such Stockholder shall
not enter into any agreement or understanding with any person or entity of which
would be inconsistent or violative of the provisions and agreements contained in
the Section 3.
4. Options. Each of the Stockholders hereby grants to Parent an irrevocable
option (each, a "Stock Option" and collectively, the "Stock Options") to
purchase the number of Shares set forth opposite such Stockholder's name on
Schedule I hereto (the "Option Shares") at a purchase price per share equal to
the Price plus any additional per share price paid to any other stockholder of
the Company pursuant to the Offer or Merger, so long as: (i) all waiting periods
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), required for the purchase of the Option Shares upon such exercise
shall have expired or been waived, and (ii) there shall not be in effect any
preliminary or final injunction or other order issued by any court or
governmental, administrative or regulatory agency or authority prohibiting the
exercise of the Stock Options under this Agreement, provided that such Stock
Option shall terminate on the Termination Date. In the event that the Parent
wishes to exercise Stock Options, Parent shall send a written notice (the
"Notice") to the Stockholders identifying the place and date (not less than two
nor more than 20 business days from the date of the Notice) for the closing of
such purchase, provided, however, that if Parent exercises any Stock Option, it
-----------------
must exercise all Stock Options.
Notwithstanding the foregoing, if Parent exercises the Stock Options
pursuant to this Section 4 and unless the Offer or Merger is terminated pursuant
to its terms, Parent shall, within 30 calendar days after the date of such
exercise, offer to all other stockholders of the Company the opportunity to sell
their shares of Company Common Stock to Parent upon the equivalent terms and
conditions provided with respect to exercise of the Stock Options in this
Section 4.
5. Other Covenants, Representations and Warranties. Each Stockholder hereby
represents and warrants to Parent as follows:
a. Ownership of Shares. Such Stockholder is either (i) the record and
Beneficial Owner of, or (ii) the Beneficial Owner but not the record holder of,
the number of shares set forth opposite
<PAGE>
such Stockholder's name of Schedule I hereto. On the date hereof, the Existing
Shares set forth opposite such Stockholder's name on Schedule I hereto
constitute all of the Shares owned of record or Beneficially Owned by such
Stockholder. Such Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Section 2 and 3 hereof,
sole power of disposition, sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the existing Shares set forth
opposite such Stockholder's name on Schedule I hereto, with no limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
b. Power; Binding Agreement. Such Stockholder has the legal capacity,
power and authority to enter into and perform all of such Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by such Stockholder will not violate any other agreement to which
such Stockholder is a party including, without limitation, any voting agreement,
stockholders agreement or voting trust. This Agreement has been duly and
validly executed and delivered by such Stockholder and constitutes a valid and
binding agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such Stockholder is Trustee
whose consent is required for the execution and delivery of this Agreement or
the consummation by such stockholder of the transactions contemplated hereby.
If such Stockholder is married and such Stockholder's Shares constitute
community property, this Agreement has been duly authorized, executed and
delivered by, and constitutes a valid and binding agreement of, such
Stockholder's spouse, enforceable against such person in accordance with its
terms. The failure of any Stockholder to honor its obligations hereunder shall
not relieve any other Stockholder from its obligations hereunder.
c. No Conflicts. Except for (i) filings under the HSR Act, if applicable,
(A) no filing with, and no permit, authorization, consent or approval of, any
state or federal public body or authority is necessary for the execution of this
Agreement by such Stockholder and the consummation by such Stockholder of the
transactions contemplated hereby and (B) none of the execution and delivery of
this Agreement by such Stockholder, the consummation by such Stockholder of the
transactions contemplated hereby or compliance by such Stockholder with any of
the provisions hereto shall (1) conflict with or result in any breach of any
applicable organizational document applicable to such Stockholder, (2) result in
a violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract commitment, arrangement, understanding, agreement or other instrument
or
<PAGE>
obligation of any kind to which such Stockholder is a party or by which such
Stockholder or any of such Stockholder's properties or assets may be bound, or
(3) violate any order, writ, injunction, decree, judgment, order, statute, rule
or regulation applicable to such Stockholder or any of such Stockholder's
properties or assets.
d. No Encumbrances. Except as applicable in connection with the
transactions contemplated by Section 2 hereof, such Stockholder's Shares and the
certificates representing such Shares are now, and at all times during the term
hereof will be, held by such Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances whatsoever, except for any such encumbrances or
proxies arising hereunder and except that Mr. Adair's shares are pledged as
collateral for the Note (hereinafter defined).
e. No Finder's Fees. Except for fees payable to First Southwest Company
by the Company, no broker, investment banker, financial adviser or other person
is entitled to any broker's, finder's, financial adviser's or other similar fee
or commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of such Stockholder.
f. No Solicitation. No Stockholder shall, in his, her or its capacity as
such, directly or indirectly, solicit (including by way of furnishing
information) or respond to any inquiries or the making of any proposal by any
person or entity (other than Parent or any affiliate of Parent) with respect to
the Company that constitutes an Acquisition Proposal, except as may be permitted
by the Merger Agreement. If any Stockholder receives any such inquiry or
proposal, then such Stockholder shall promptly inform Parent of the existence
thereof. Each Stockholder will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing.
g. Restriction on Transfer, Proxies and Non-Interference. Except as
applicable in connection with the transactions contemplated by Section 2 hereof,
no Stockholder shall, directly or indirectly: (i) offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect to
or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of such Stockholder's Shares or
any interest therein; (ii) except as contemplated by this Agreement, grant any
proxies or powers of attorney, deposit any Shares into a voting trust or enter
into a voting agreement with respect to any Shares; or (iii) take any action
that would make any representation or warranty of such Stockholder contained
herein untrue or incorrect or have the effect of preventing or disabling such
Stockholder from performing such
<PAGE>
Stockholder's obligations under this Agreement.
h. Waiver of Appraisal Rights. Each Stockholder hereby waives any rights
of appraisal or rights to dissent from the Merger that such Stockholder may
have.
i. Reliance by Parent. Such Stockholder understands and acknowledges that
Parent is continuing to negotiate, and causing Sub to negotiate the terms of the
Merger Agreement in reliance upon such Stockholder's execution and delivery of
this Agreement.
j. Further Assurances. From time to time, at the other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further lawful action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
k. Indemnification; Directors' and Officers' Insurance. (a) Parent shall
indemnify, defend and hold harmless each Stockholder, (the "Indemnified
Parties") against all losses, claims, damages, costs, expenses (including
reasonable attorneys' fees and expenses), liabilities or judgments or amounts
that are paid in settlement with the approval of the indemnifying party (which
approval shall not be unreasonably withheld) of or in connection with any
threatened or actual claim, action, suit, proceeding or investigation based in
whole or in part on or arising in whole or in part out of the fact that such
person executed this Agreement, other than as a result of, or relating to, any
claim of a Stockholder (and Parent will pay expenses in advance of the final
disposition of any such action or proceeding to each Indemnified Party to the
full extent permitted by law). Without limiting the foregoing, in the event any
such claim, action, suit, proceeding or investigation is brought against any
Indemnified Parties, (i) the Indemnified Parties may retain counsel satisfactory
to them and Parent and Parent shall pay all fees and expenses of such counsel
for the Indemnified Parties promptly as statements therefore are received; and
(ii) Parent will use all reasonable efforts to assist in the vigorous defense of
any such matter, provided that Parent shall not be liable for any settlement
effected without its prior written consent. Any Indemnified Party wishing to
claim indemnification under this Section 5.k., upon learning of any such claim,
action, suit, proceeding or investigation, shall notify Parent. The Indemnified
Parties as a group may retain only one law firm to represent them with respect
to each such matter unless there is, under applicable standards of professional
conduct, a conflict in the written opinion of counsel to the Indemnified
Parties, on any significant issue between the positions of any two or more
Indemnified Parties, provided that in no event shall the Parent be obligated to
pay the fees and expenses of more than two law firms on behalf of all
Indemnified Parties.
The provisions of this Section 5.k. are intended to be for the benefit of,
and shall be enforceable by, each Indemnified Party,
<PAGE>
his heirs and his personal representatives and shall be binding on all
successors and assigns of Parent, Sub, the Company and the Surviving
Corporation. The provisions of this Section 5.k. shall terminate and shall be
of no force or effect following execution of the Merger Agreement or upon
Parent's delivery of notice to the Indemnified Party that it will immediately
upon the written request of such party terminate the Option relating to the
shares of Company Common Stock owned by such Indemnified Party.
6. Covenant of Danny J. Adair. Danny J. Adair, the President and Chief
Executive Officer of the Company, hereby acknowledges that pursuant to a Debt
Restructuring and Non-Competition Agreement dated as of September 28, 1990, as
amended December 31, 1993, the Company holds Mr. Adair's secured promissory note
(the "Note") in the principal amount of $2,803,000 (together with all accrued
and unpaid interest thereon, the "Loan Amount"). Mr. Adair agrees that any
amount to be paid to him in the Offer or pursuant to this Stock Option in
exchange for his Shares shall be net of the Loan Amount and that the Loan Amount
shall instead be paid to the Company in full satisfaction of his obligations
under the Note.
7. Stop transfer. Each Stockholder agrees with, and covenants to, Parent that
such Stockholder shall not request that the Company register the transfer (book-
entry or otherwise) of any certificate or uncertificated interest representing
any of such Stockholder's Shares, unless such transfer is made in compliance
with this Agreement (including the provisions of Section 2 hereof). In the
event of a stock dividend or distribution, or any change in the Company Common
Stock by reason of any stock dividend, split-up, recapitalization, combination,
exchange of shares or the like, the term "Shares" shall be deemed to refer to
and include the Shares as well as all such stock dividends and distributions and
any shares into which or for which any or all of the Shares may be changed or
exchanged.
8. Termination. Except as otherwise provided herein, the covenants and
agreements contained herein with respect to the Shares shall terminate upon the
Termination Date.
9. Stockholder Capacity. No person executing this Agreement who is or becomes
during the term hereof a director of the Company makes any agreement or
understanding herein in his or her capacity as such director. Each Stockholder
signs solely in his or her capacity as the record and beneficial owner of, or
the trustee of a trust whose beneficiaries are the beneficial owners of, such
Stockholder's Shares.
10. Confidentiality. The Stockholders recognize that successful consummation
of the transactions contemplated by this Agreement may be dependent upon
confidentiality with respect to the matters referred to herein. In this
connection, pending public disclosure thereof, each Stockholder hereby agrees
not to disclose or discuss such matters with anyone not a party to this
Agreement (other than
<PAGE>
such Stockholder's counsel and advisors, if any) without the prior written
consent of Parent, except for filings required pursuant to the Exchange Act and
the rules and regulations thereunder or disclosures such Stockholder's counsel
advises are necessary in order to fulfill such Stockholder's obligations imposed
by law, in which event such Stockholder shall give notice of such disclosure to
Parent as promptly as practicable so as to enable Parent to seek a protective
order from a court of competent jurisdiction with respect thereto.
11. Negotiating in Good Faith. In consideration of the Stockholders executing
and delivering this Agreement, Parent and Sub agree to negotiate in good faith
and use its commercially reasonable best efforts to execute and deliver a Merger
Agreement (which shall include an agreement to tender for the outstanding shares
of Company Common Stock) on terms mutually satisfactory to the parties thereto
as soon as practicable; provided that Parent and Sub's failure to execute such
agreement shall not relieve the stockholders from their obligations hereunder.
12. Miscellaneous.
a. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof.
b. Certain Events. Each Stockholder agrees that this Agreement and the
obligations hereunder shall attach to such Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including, without
limitation, such Stockholder's heirs, guardians, administrators or successors.
Notwithstanding any transfer of Shares, the transferor shall remain liable for
the performance of all obligations under this Agreement of the transferor.
c. Assignment. This Agreement shall not be assigned by operation of law
or otherwise without the prior written consent of all the other parties thereto,
provided that Parent may assign, in its sole discretion, its rights hereunder to
any direct or indirect wholly owned subsidiary of Parent, but no such assignment
shall relieve Parent of its obligations hereunder if such assignee does not
perform such obligations.
d. Amendments, Waivers, Etc. This Agreement many not be amended, changed,
supplemented, waived or otherwise modified or terminated, with respect to any
one or more Stockholders, except upon the execution and delivery of a written
agreement executed by the relevant parties hereto; provided that Schedule I
hereto may be supplemented by Parent by adding the name and other relevant
information concerning any stockholder of the Company who agrees to
<PAGE>
be bound by the terms of this Agreement without the agreement of any other party
hereto, and thereafter such added stockholder shall be treated as a
"Stockholder" for all purposes of this Agreement.
e. Notices. All notices, requests, claims demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to Stockholder: At the addresses set forth on the Company's
records
If to Parent G-I Holdings, Inc.
or Sub, to: 1361 Alps Road Wayne
Wayne, New Jersey 07470
(201)628-3124 (telephone)
(201)628-4118 (telecopier)
Attention: Chief Financial Officer
copy to: G-1 Holdings, Inc.
1361 Alps Road
Wayne, New Jersey 07470
(201) 628-3520 (telephone)
(201) 628-3196 (telecopier)
Attention: General Counsel
and
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
(212) 310-8000 (telephone)
(212) 310-8007 (telecopier)
Attention: Stephen E. Jacobs, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
f. Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this
<PAGE>
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision had never been contained
herein.
g. Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
h. Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
i. No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
j. No Third Party Beneficiaries. This Agreement is not intended to be for
the benefit of, and shall not be enforceable by, any person or entity who or
which is not a party hereto.
k. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
l. Jurisdiction. Each party hereby irrevocably submits to the
jurisdiction of the Court of Chancery in the State of Delaware or the United
States District Court for the Southern District of New York or any court of the
State of New York located in the City of New York in any action, suit or
proceeding arising in connection with this Agreement, and agrees that any such
action, suit or proceeding may be brought in such court (and waives any
objection based on forum non conveniens or any other objection to venue
therein): provided, however, that such consent to jurisdiction is solely for the
purpose referred to in this paragraph (1) and shall not be deemed to be a
general submission to the jurisdiction of said Courts or in the States of
Delaware or New York other than for such purposes. Each party hereto hereby
waives any right to a trial by jury in connection with any such action, suit or
<PAGE>
proceeding.
m. Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
n. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which, taken together shall
constitute one and the same Agreement, provided that the failure of any
Stockholder identified on the signature page to execute this Agreement shall not
relieve the Stockholder parties hereto from their respective obligations
hereunder.
<PAGE>
IN WITNESS WHEREOF, Parent and Each Stockholder have caused this Agreement
to be duly executed as of the day and year first above written.
G-I HOLDINGS, INC.
By: /s/ James P. Rogers
-------------------------
Name: James P. Rogers
Title: S.V.P.
USI ACQUISITION COMPANY
By: /s/ James P. Rogers
--------------------------
Name: James P. Rogers
Title:
FIRST SOUTHWEST COMPANY
By: /s/ Hillel A. Feinberg
--------------------------
Name: Hillel A. Feinberg
Title: President and CEO
UMPHREY FAMILY LIMITED PARTNERSHIP
By: /s/ Hillel A. Feinberg
-------------------------------
Hillel A. Feinberg
Attorney-in-Fact
490 PARK JOINT VENTURE
By: /s/ Hillel A. Feinberg
-------------------------------
Hillel A. Feinberg
Attorney-in-Fact
/s/ Danny J. Adair
-----------------------------------
Danny J. Adair
/s/ Albert E. Brammer
----------------------------------
Albert E. Brammer
/s/ Austin W. Gonsoulin
----------------------------------
Austin W. Gonsoulin
/s/ Robert G. Hoag
----------------------------------
Robert G. Hoag
<PAGE>
/s/ Ken. D. Latiolais
----------------------------------
Ken. D. Latiolais
/s/ S. Craig Noble
----------------------------------
S. Craig Noble
/s/ Hillel A. Feinberg
----------------------------------
Hillel A. Feinberg
DEBRA J. FEINBERG
/s/ Hillel A. Feinberg
----------------------------------
By: Hillel A. Feinberg
Attorney-in-Fact
UTLEY GROUP II
/s/ Hillel A. Feinberg
----------------------------------
By: Hillel A. Feinberg
Attorney-in-Fact
/s/ Paul M. Bass, Jr.
----------------------------------
Paul M. Bass, Jr.
/s/ Michael J. Marz
----------------------------------
Michael J. Marz
/s/ Richard Earl Purkey, Sr.
----------------------------------
Richard Earl Purkey, Sr.
/s/ J. Roane Ruddy
----------------------------------
J. Roane Ruddy
<PAGE>
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
----------------------
Name of Stockholder Number of Shares Owned
- ------------------- ----------------------
1. First Southwest Company 179,290
2. Umphrey Family Limited Partnership 65,311
3. 490 Park Joint Venture 81,189
4. Danny J. Adair 814,521
5. Albert E. Brammer 5,000
6. Austin W. Gonsoulin 5,600
7. Robert G. Hoag 512,000
8. Ken D. Latiolais 42,100
9. S. Craig Noble 35,800
10. Richard Earl Purkey, Sr. 14,500
11. J. Roane Ruddy 15,000
12. Hillel A. Feinberg 20,000
13. Debra J. Feinberg 7,500
14. Utley Group II 25,000
15. Paul M. Bass, Jr. 10,000
16. Michael J. Marz 3,000
