SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
_______________________
Date of Report
(Date of earliest
event reported): September 26, 1995
Giddings & Lewis, Inc.
(Exact name of registrant as specified in its charter)
Wisconsin 0-17873 39-1643189
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
142 Doty Street, Fond du Lac, Wisconsin 54935
(Address of principal executive offices, including zip code)
(414) 921-9400
(Registrant's telephone number)
<PAGE>
Item 5. Other Events.
On September 26, 1995, Giddings & Lewis, Inc. (the "Company")
agreed to sell $100,000,000 principal amount of its 7-1/2% Notes Due 2005
(the "Notes") in a public offering through CS First Boston Corporation.
The closing for the sale of the Notes is scheduled for October 2, 1995.
The Notes are registered on a Registration Statement on Form S-3
(Registration No. 33-61237) as filed with the Securities and Exchange
Commission. Final versions of the Terms Agreement, by and between the
Company and CS First Boston Corporation, the Underwriting Agreement
incorporated into the Terms Agreement by reference and the Officer's
Certificate creating the Notes are filed herewith.
Item 7. Financial Statements and Exhibits.
(a) Not Applicable.
(b) Not Applicable.
(c) Exhibits.
The exhibits listed in the accompanying Exhibit Index are
filed as part of this Current Report on Form 8-K.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
GIDDINGS & LEWIS, INC.
Date: September 26, 1995 By: /s/ Richard C. Kleinfeldt
Richard C. Kleinfeldt
Vice President-Finance, Secretary
and Chief Financial Officer
<PAGE>
GIDDINGS & LEWIS, INC.
EXHIBIT INDEX TO FORM 8-K
Report Dated September 28, 1995
Exhibit
(2) Terms Agreement, dated as of September
26, 1995, by and between Giddings &
Lewis, Inc. and CS First Boston
Corporation, and the Underwriting
Agreement incorporated by reference
therein.
(4) Officer's Certificate, dated as of
September 26, 1995, executed and
delivered in connection with the
issuance and sale of Giddings & Lewis,
Inc.'s 7-1/2% Notes Due 2005.
(12) Statement re computation of ratios of
earnings to fixed charges.
GIDDINGS & LEWIS, INC.
("Company")
Debt Securities
TERMS AGREEMENT
September 26, 1995
To: The Underwriter identified herein
Dear Sirs/Madams:
The undersigned agrees to sell to the Underwriter named below for its
account, on and subject to the terms and conditions of the Underwriting
Agreement attached hereto ("Underwriting Agreement"), the following
securities ("Offered Securities") on the following terms:
Title: 7-1/2% Notes Due 2005.
Principal Amount: $100,000,000.
Interest: 7-1/2% per annum, from October 2, 1995, payable
semiannually on April 1 and October 1, commencing April 1, 1996, to
holders of record on the preceding March 15 or September 15, as the
case may be.
Maturity: October 1, 2005.
Optional Redemption: None
Sinking Fund: None
Listing: None
Delayed Delivery Contracts: None.
Proceeds to Company: 99.125% of principal amount, plus accrued
interest, if any, from October 2, 1995.
Price to Public: 100% of principal amount, subject to change by
the Underwriter.
Closing: 9:00 A.M. on October 2, 1995, at the offices of Foley
& Lardner, in immediately available (same day) funds.
Settlement and Trading: Book-Entry Only via DTC. The Offered
Securities will trade in DTC's Same Day Funds Settlement System.
Name and Address of Underwriter:
CS First Boston Corporation
55 East 52nd Street
New York, New York 10055
The provisions of the Underwriting Agreement are incorporated
herein by reference.
For purposes of Section 6 of the Underwriting Agreement, the
only information furnished to the Company by the Underwriter for use in
the Prospectus consists of the following information in the prospectus
supplement related to the Offered Securities dated September 26, 1995:
(i) the last paragraph at the bottom of the prospectus supplement cover
page concerning the terms of the offering by the Underwriters, (ii) the
legend concerning stabilizing on the inside front cover page of the
prospectus supplement, and (iii) the concession and reallowance figures
appearing in the third paragraph under the caption "Underwriting" in the
prospectus supplement.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company
and the Underwriter in accordance with its terms.
Very truly yours,
GIDDINGS & LEWIS, INC.
By: /s/ Douglas E. Barnett
Douglas E. Barnett
Its: Treasurer
The foregoing Terms Agreement is hereby confirmed
and accepted as of the date first above written.
CS FIRST BOSTON CORPORATION
By: /s/ James B. Hoesley
James B. Hoesley
Its: Managing Director
<PAGE>
Giddings & Lewis, Inc.
Debt Securities
UNDERWRITING AGREEMENT
1. Introductory. Giddings & Lewis, Inc., a Wisconsin corporation
("Company"), proposes to issue and sell from time to time certain of its
unsecured debt securities registered under the registration statement
referred to in Section 2(a) ("Registered Securities"). The Registered
Securities will be issued under an indenture, dated as of August 7, 1995
("Indenture"), between the Company and Firstar Trust Company, as Trustee,
in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, selling prices and other terms, with
all such terms for any particular series of the Registered Securities
being determined at the time of sale. Particular series of the Registered
Securities will be sold pursuant to a Terms Agreement referred to in
Section 3, for resale in accordance with terms of offering determined at
the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Offered Securities". The firm or firms
which agree to purchase the Offered Securities are hereinafter referred to
as the "Underwriters" of such Securities, and the representative or
representatives of the Underwriters, if any, specified in a Terms
Agreement referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Sections 2(b),
5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company, as
of the date of each Terms Agreement referred to in Section 3, represents
and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (No. 33-61237),
including a prospectus, relating to the Registered Securities has
been filed with the Securities and Exchange Commission ("Commission")
and has become effective. Such registration statement, as amended at
the time of any Terms Agreement referred to in Section 3 and
including all material incorporated by reference therein, is
hereinafter referred to as the "Registration Statement", and the
prospectus included in such Registration Statement, as supplemented
as contemplated by Section 3 to reflect the terms of the Offered
Securities and the terms of offering thereof, as first filed in final
form with the Commission pursuant to and in accordance with
Rule 424(b) ("Rule 424(b)") under the Securities Act of 1933 ("Act"),
including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus". No document has been or
will be prepared or distributed in reliance on Rule 434 under the
Act.
(b) The Company is eligible to use Form S-3. On the effective
date of the Registration Statement relating to the Registered
Securities, such Registration Statement conformed in all material
respects to the requirements of the Act, the Trust Indenture Act of
1939 ("Trust Indenture Act") and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and on the date of each Terms Agreement
referred to in Section 3, the Registration Statement and the
Prospectus will conform in all material respects to the requirements
of the Act, the Trust Indenture Act and the Rules and Regulations,
and neither of such documents will include any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, except that the foregoing does not apply to statements in
or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(c) The Company has been duly incorporated and is a validly
existing corporation under the laws of the State of Wisconsin, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing
(to the extent applicable) in all other jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification, except where the failure so to qualify
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(d) Each of Giddings & Lewis Ltd., Cross & Trecker Corporation,
Giddings & Lewis GmbH, Fadal Engineering Co., Inc. and The Cross
Company (the "Material Subsidiaries") has been duly incorporated and
is a validly existing corporation in good standing (to the extent
applicable) under the laws of the jurisdiction of its incorporation,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and each Material
Subsidiary is duly qualified to do business as a foreign corporation
in good standing (to the extent applicable) in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure so to qualify would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; all of the issued and
outstanding capital stock of each Material Subsidiary of the Company
has been duly authorized and validly issued and is fully paid and
nonassessable (except as to assessability as provided in Section
180.0622(2)(b) of the Wisconsin Business Corporation Law or as may be
provided by applicable foreign corporate law); and the capital stock
of each Material Subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
Other than the Material Subsidiaries, the Company has no "significant
subsidiaries" (as that term is defined in Regulation S-X).
(e) The Indenture has been duly authorized and has been duly
qualified under the Trust Indenture Act; the Offered Securities have
been duly authorized; and when the Offered Securities are delivered
and paid for pursuant to the Terms Agreement on the Closing Date (as
defined below) or pursuant to Delayed Delivery Contracts (as
hereinafter defined), the Indenture will have been duly executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the
description thereof contained in the Prospectus and the Indenture and
such Offered Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles and subject to the qualification that certain provisions
thereof may be unenforceable in whole or in part under the laws of
the State of Wisconsin, but the inclusion of such provisions does not
affect the validity of the Indenture or the Offered Securities and
each contain legally adequate provisions for the realization of the
principal legal rights and benefits offered thereby.
(f) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for
the consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) or for the use
of the proceeds received by the Company from such sale in the manner
contemplated by the description under the caption "Use of Proceeds"
contained in the Prospectus in connection with the issuance and sale
of the Offered Securities by the Company, except such as have been
obtained and made under the Act and the Trust Indenture Act, such as
may be required under state or foreign securities laws and except for
the filing by the Company of a Current Report on Form 8-K related to
the issuance of the Offered Securities, as required under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(g) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, (i) to the best of
the Company's knowledge, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company
or any of their properties, or (ii) any agreement or instrument that
is material to the business of the Company and its subsidiaries taken
as a whole to which the Company or any such subsidiary is a party or
by which the Company or any such subsidiary is bound or to which any
of the properties of the Company or any such subsidiary is subject,
or the charter or by-laws of the Company or any such subsidiary, and
the Company has full corporate power and authority to authorize,
issue and sell the Offered Securities as contemplated by the Terms
Agreement (including the provisions of this Agreement).
(h) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
(i) No event of default or event which, but for the giving of
notice or the lapse of time or both, would constitute an event of
default exists or, upon the use of proceeds from the sale of the
Offered Securities in the manner contemplated by the description
under the caption "Use of Proceeds" contained in the Prospectus, will
exist under any agreement or instrument for borrowed money or any
guarantee to which the Company or any of its subsidiaries is a party
or to which any of the properties or assets of the Company or any
subsidiary are subject, except in the case in which default(s) in the
aggregate would not have a material adverse effect on the Company and
its subsidiaries taken as a whole or on the consummation of the
transactions contemplated hereby.
(j) Except as disclosed in the Prospectus, to the best of the
Company's knowledge, neither the Company nor any of its subsidiaries
is in violation of any statute, any rule, regulation, decision or
order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole; and the Company is not aware of any
pending investigation which might lead to such a claim.
(k) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any
of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on
the condition (financial or other), business, prospects or results of
operations of the Company and its subsidiaries taken as a whole, or
would materially and adversely affect the ability of the Company to
perform its obligations under the Indenture, the Terms Agreement
(including the provisions of this Agreement) or any Delayed Delivery
Contracts; and, to the best of the Company's knowledge, no such
actions, suits or proceedings are threatened or contemplated.
(l) The descriptions in the Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate in all material respects and fairly present the information
required to be shown; and there are no legal or governmental
proceedings required to be described in the Prospectus that are not
described as required and no contracts or documents of a character
required to be described in the Registration Statement or the
Prospectus which are not described as required.
(m) The financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis, except as may be stated therein; and any
exhibits or schedules included in the Registration Statement present
fairly the information required to be stated therein.
(n) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
(i) there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole,
(ii) except for regular cash dividends on the Company's common stock,
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock, and
(iii) the Company has not incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business.
(o) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940.
(p) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located
in Cuba within the meaning of Section 517.075, Florida Statutes and
the Company agrees to comply with such Section if prior to the
completion of the distribution of the Offered Securities it commences
doing such business.
3. Purchase and Offering of Offered Securities. The obligation of
the Underwriters to purchase the Offered Securities will be evidenced by
an agreement or exchange of other written communications ("Terms
Agreement") at the time the Company determines to sell the Offered
Securities. The Terms Agreement will incorporate by reference the
provisions of this Agreement, except as otherwise provided therein, and
will specify the firm or firms which will be Underwriters, the names of
any Representatives, the principal amount to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters and the
terms of the Offered Securities not already specified in the Indenture,
including, but not limited to, interest rate, maturity, any redemption
provisions and any sinking fund requirements and whether any of the
Offered Securities may be sold to institutional investors pursuant to
Delayed Delivery Contracts (as defined below). The Terms Agreement will
also specify the time and date of delivery and payment (such time and
date, or such other time not later than four full business days thereafter
as the Underwriter first named in the Terms Agreement (the "Lead
Underwriter") and the Company agree as the time for payment and delivery,
being herein and in the Terms Agreement referred to as the "Closing
Date"), the place of delivery and payment and any details of the terms of
offering that should be reflected in the prospectus supplement relating to
the offering of the Offered Securities. For purposes of Rule 15c6-1 under
the Exchange Act, the Closing Date (if later than the otherwise applicable
settlement date) shall be the date for payment of funds and delivery of
securities for all the Offered Securities sold pursuant to the offering,
other then Contract Securities for which payment of funds and delivery of
securities shall be as hereinafter provided. The obligations of the
Underwriters to purchase the Offered Securities will be several and not
joint. It is understood that the Underwriters propose to offer the
Securities for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the
Underwriters to solicit offers to purchase Offered Securities pursuant to
delayed delivery contracts substantially in the form of Annex I attached
hereto ("Delayed Delivery Contracts") with such changes therein as the
Company may authorize or approve. Delayed Delivery Contracts are to be
with institutional investors, including commercial and savings banks,
insurance companies, pension funds, investment companies and educational
and charitable institutions. On the Closing Date the Company will pay, as
compensation, to the Representatives for the accounts of the Underwriters,
the fee set forth in such Terms Agreement in respect of the principal
amount of Offered Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Offered
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter
will be reduced pro rata in proportion to the principal amount of Offered
Securities set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent that the Lead Underwriter determines that
such reduction shall be otherwise than pro rata and so advises the
Company. The Company will advise the Lead Underwriter not later than the
business day prior to the Closing Date of the principal amount of Contract
Securities.
If the Terms Agreement specifies "Book-Entry Only" settlement or
otherwise states that the provisions of this paragraph shall apply, the
Company will deliver against payment of the purchase price the Offered
Securities in the form of one or more permanent global Securities in
definitive form (the "Global Securities") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the
name of Cede & Co., as nominee for DTC. Interests in any permanent global
Securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters (if the Terms Agreement
specifies that the Offered Securities will not trade in DTC's Same Day
Funds Settlement System) by certified or official bank check or checks in
New York Clearing House (next day) funds or (if the Terms Agreement
specifies that the Offered Securities will trade in DTC's Same Day Funds
Settlement System) in Federal (same day) funds by official check or checks
or wire transfer to the Company's account as previously designated to the
Lead Underwriter by the Company in each case drawn to the order
of Giddings & Lewis, Inc. at the place of payment specified in the Terms
Agreement on the Closing Date, against delivery to the Trustee as
custodian for DTC of the Global Securities representing all of the Offered
Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters,
one signed copy of the Registration Statement relating to the Registered
Securities, including all exhibits, in the form it became effective and of
all amendments thereto and that, in connection with each offering of
Offered Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with the appropriate subsection of
Rule 424(b) not later than the second business day following the
execution and delivery of the Terms Agreement.
(b) The Company will advise the Lead Underwriter promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Lead Underwriter promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, any event occurs as a result
of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Lead Underwriter of such event
and will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance.
Neither the Lead Underwriter's consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 18 months, after
the date of each Terms Agreement, the Company will make generally
available to its security holders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the
effective date of the Registration Statement relating to the
Registered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the
date of the Company's most recent Annual Report on Form 10-K filed
with the Commission prior to the date of such Terms Agreement, which
will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of
the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus
supplement, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities
as the Lead Underwriter reasonably requests. The Company will pay
the expenses of printing and distributing to the Underwriters all
such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale and, if requested by the Lead
Underwriter, the determination of their eligibility for investment
under the laws of such jurisdictions as the Lead Underwriter
designates and will continue such qualifications in effect so long as
required for the distribution; provided, however, that the Company
shall not be obligated to file any general consent to service or
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction which it is not so qualified or to
subject itself to taxation in respect of any business in any
jurisdiction which it is not otherwise so subject.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to shareholders for such year; and the Company will furnish to
the Representatives (i) as soon as available, a copy of each report
and any definitive proxy statement of the Company filed with the
Commission under the Securities Exchange Act of 1934 or mailed to
shareholders, and (ii) from time to time, such other information
concerning the Company as the Company shall furnish to its
shareholders generally.
(h) The Company will pay all expenses incident to the
performance of its obligations under the Terms Agreement (including
the provisions of this Agreement) and will reimburse the Underwriters
(if and to the extent incurred by them) for any filing fees or other
expenses (including fees and disbursements of counsel) incurred by
them in connection with qualification of the Registered Securities
for sale and determination of their eligibility for investment under
the laws of such jurisdictions as the Lead Underwriter may designate
and the printing of memoranda relating thereto, for any fees charged
by investment rating agencies for the rating of the Offered
Securities, for any applicable filing fee of the National Association
of Securities Dealers, Inc. relating to the Registered Securities,
for any travel expenses of the Company's officers and employees and
any other expenses of the Company in connection with attending or
hosting meetings with prospective purchasers of Registered Securities
and for expenses incurred in distributing the Prospectus, any
preliminary prospectuses, any preliminary prospectus supplements or
any other amendments or supplements to the Prospectus to the
Underwriters.
(i) The Company will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to United
States dollar-denominated debt securities issued or guaranteed by the
Company and having a maturity of more than one year from the date of
issue, or publicly disclose the intention to make any such offer,
sale, pledge, disposal or filing, without the prior written consent
of the Lead Underwriter for a period beginning at the time of
execution of the Terms Agreement and ending on the later of (i) the
date of termination of the syndicate and (ii) the Closing Date.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the
Offered Securities will be subject to the accuracy of the representations
and warranties on the part of the Company herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of Ernst & Young LLP confirming that they are inde-
pendent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to
the effect that:
(i) in their opinion the financial statements and any
schedules examined by them and included in the Prospectus comply
in form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review
of interim financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on any
unaudited financial statements included in the Registration
Statement;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company and its subsidiaries,
inquiries of officials of the Company and its subsidiaries who
have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements, if any, and
any pro forma financial statements and any summary of
earnings included in the Prospectus do not comply in form
in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations or any material modifications should be made to
such unaudited financial statements and summary of earnings
for them to be in conformity with generally accepted
accounting principles;
(B) if any unaudited "capsule" information is
contained in the Prospectus, the unaudited consolidated net
sales, net operating income, net income and net income per
share amounts or other amounts constituting such "capsule"
information and described in such letter do not agree with
the corresponding amounts set forth in the unaudited
consolidated financial statements or were not determined on
a basis substantially consistent with that of the
corresponding amounts in the audited statements of income;
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than five days prior to the date of the Terms
Agreement, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of
the Company and its consolidated subsidiaries or, at the
date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated net
current assets or net assets, as compared with amounts
shown on the latest balance sheet included in the
Prospectus; or
(D) for the period from the closing date of the
latest income statement included in the Prospectus to the
closing date of the latest available income statement read
by such accountants there were any decreases, as compared
with the corresponding period of the previous year and with
the period of corresponding length ended the date of the
latest income statement included in the Prospectus, in
consolidated net sales, in net income or in the ratio of
earnings to fixed charges and preferred stock dividends
combined;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in
such letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
All financial statements and schedules and pro forma financial
statements included in material incorporated by reference into the
Prospectus shall be deemed included in the Prospectus for purposes of
this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, shall be
contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any material adverse change, or any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or
results of operations of the Company or its subsidiaries which, in
the judgment of a majority in interest of the Underwriters including
any Representatives, materially impairs the investment quality of the
Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal, New York or Wisconsin authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters including any
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated
the Closing Date, of Foley & Lardner, counsel for the Company, to the
effect that:
(i) The Company and each of Cross & Trecker Corporation,
The Cross Company and Fadal Engineering Company, Inc.
(collectively, the "Domestic Material Subsidiaries") is a
validly existing corporation in good standing (to the extent
applicable) under the laws of the state of its incorporation,
with corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and each of
the Company and the Domestic Material Subsidiaries is duly
qualified to do business as a foreign corporation in good
standing (to the extent applicable) in all other jurisdictions
in which its ownership or lease of property or the conduct of
its business requires such qualification, except where the
failure to so qualify would not have a material adverse effect
on the Company and its subsidiaries taken as a whole;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the
Trust Indenture Act; the Offered Securities have been duly
authorized by the Company; the Offered Securities other than any
Contract Securities have been duly executed, authenticated,
issued and delivered; the Indenture and the Offered Securities
other than any Contract Securities constitute, and any Contract
Securities, when executed, authenticated, issued and delivered
in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, will constitute, valid and legally
binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles and subject to the qualification that
certain provisions thereof may be unenforceable in whole or in
part under the laws of the State of Wisconsin, but the inclusion
of such provisions does not affect the validity of the Indenture
or the Offered Securities and each contain legally adequate
provisions for the realization of the principal legal rights and
benefits afforded thereby; and the Offered Securities other than
any Contract Securities conform in all material respects, and
any Contract Securities, when so issued and delivered and sold
by the Company will conform in all material respects, to the
description thereof contained in the Prospectus;
(iii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or, to the best
knowledge of such counsel, any court is required for the
consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) in
connection with the issuance or sale of the Offered Securities
by the Company, except such as have been obtained and made under
the Act, the Trust Indenture Act and the Exchange Act and such
as may be required under state or foreign securities laws;
(iv) The execution, delivery and performance of the
Indenture, the Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts and the issuance
and sale of the Offered Securities and compliance with the terms
and provisions thereof will not result in a breach or violation
of any of the terms and provisions of, or constitute a default
under, the charter or by-laws of the Company, or to the best
knowledge of such counsel, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any of its properties, or any
agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or to which
any of the properties of the Company is subject; and the Company
has full corporate power and authority to authorize, issue and
sell the Offered Securities as contemplated by the Terms
Agreement (including the provisions of this Agreement);
(v) The Registration Statement has become effective under
the Act, the Prospectus was filed with the Commission pursuant
to the subparagraph of Rule 424(b) specified in such opinion on
the date specified therein, and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and
no proceedings for that purpose have been instituted or are
pending or contemplated under the Act;
(vi) The Registration Statement relating to the Registered
Securities, as of its effective date, the Registration Statement
and the Prospectus, as of the date of the Terms Agreement, and
any amendment or supplement thereto, as of its date, complied as
to form in all material respects with the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations; such
counsel have no reason to believe that such Registration
Statement, as of its effective date, the Prospectus, as of its
date, the date of the Terms Agreement or as of the Closing Date,
or any amendment thereto, as of its date or as of the Closing
Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus, as of the date of the Terms Agreement or as
of such Closing Date, or any amendment or supplement thereto, as
of its date or as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; the descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents (as such descriptions relate to
matters of law or legal conclusions) are accurate in all
material respects and fairly present the information required to
be shown; and such counsel do not know of any legal or
governmental proceedings required to be described in the
Prospectus which are not described as required or of any
contracts or documents of a character required to be described
in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described
and filed as required; it being understood that, for purposes of
the opinions described in this paragraph (vi), such counsel need
express no opinion as to the financial statements, financial
schedules or other financial or statistical data contained in
the Registration Statement or the Prospectus; and
(vii) The Terms Agreement (including the provisions of
this Agreement) and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
It is understood that the opinion of such counsel may state that
such counsel is relying as to factual matters on certificates of
officers of the Company and of state officials and, as to legal
matters in jurisdictions other than in which they are domiciled, on
opinions of local counsel of other counsel or of other counsel
retained or having rendered legal services with respect to specific
matters, in which case their opinion is to state that they are so
doing and they believe such reliance is reasonable.
(e) The Representatives shall have received from Jones, Day,
Reavis & Pogue, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the incorporation
of the Company, the validity of the Offered Securities, the
Registration Statement, the Prospectus and other related matters as
the Representatives may require, and the Company shall have furnished
to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In rendering such opinion,
Jones, Day, Reavis & Pogue may rely as to matters of law other than
the law of the State of Delaware, the State of New York and the
Federal law of the United States upon the opinion of other counsel of
good standing believed to be reliable, provided that such opinion
shall be otherwise delivered to the Underwriters on the Closing Date
or attached to the opinion of counsel for the Underwriters.
(f) The Representatives shall have received a certificate,
dated the Closing Date, of the Chief Executive Officer or any Vice-
President and a principal financial or accounting officer of the
Company in which such officers, to the best of their knowledge after
reasonable investigation, shall state that the representations and
warranties of the Company in this Agreement are true and correct,
that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof
has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission and that, subsequent
to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a
whole except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(g) The Representatives shall have received a letter or letters
(which may refer to a letter or letters previously delivered to the
Representatives), dated the Closing Date, of Ernst & Young LLP which
meets the requirements of subsection (a) of this Section, except that
the specified date referred to in such subsection will be a date not
more than five days prior to the Closing Date for the purposes of
this subsection.
The Company will furnish the Representatives with such conformed copies of
such opinions, certificates, letters and documents as the Representatives
reasonably request. The Lead Underwriter may, in its sole discretion,
waive on behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters under this Agreement and the Terms
Agreement.
6. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter
consists of the information described as such in the Terms Agreement; and,
provided, further, that as to any untrue statement or omission in any
preliminary prospectus this subsection shall not inure to the benefit of
any Underwriter on account of any loss, claim, damage, liability or action
arising from the sale of Offered Securities to any person by that
Underwriter if that Underwriter failed to send or give a copy of the
Prospectus (excluding any documents incorporated by reference), as the
same may be amended or supplemented, to that person if required under the
Act, and the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact in such
preliminary prospectus was corrected in such Prospectus unless such
failure resulted form non-compliance by the Company with Sections 4(b),
4(c) and 4(e) hereof.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company by
such Underwriter through the Representatives, if any, specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such
in the Terms Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under subsection (a)
or (b) above. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release
of such indemnified party from all liability on any claims that are the
subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on
the other from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject
of this subsection (d). Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed the Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities under the
Terms Agreement and the aggregate principal amount of Offered Securities
that such defaulting Underwriter or Underwriters agreed but failed to pur-
chase does not exceed 10% of the total principal amount of Offered
Securities, the Lead Underwriter may make arrangements satisfactory to the
Company for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by
the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under the Terms
Agreement (including the provisions of this Agreement), to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of Offered Securities with respect to which such default
or defaults occur exceeds 10% of the total principal amount of Offered
Securities and arrangements satisfactory to the Lead Underwriter and the
Company for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, the Terms Agreement will
terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 8. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default. The respective commitments of
the several Underwriters for the purposes of this Section shall be
determined without regard to reduction in the respective Underwriters'
obligations to purchase the principal amounts of the Offered Securities
set forth opposite their names in the Terms Agreement as a result of
Delayed Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters
set forth in or made pursuant to the Terms Agreement (including the
provisions of this Agreement) will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or
if for any reason the purchase of the Offered Securities by the Under-
writers is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 4 and the
respective obligations of the Company and the Underwriters pursuant to
Section 6 shall remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other
than solely because of the termination of the Terms Agreement pursuant to
Section 7 or the occurrence of any event specified in clause (iii), (iv)
or (v) of Section 5(c), the Company will reimburse the Underwriters for
all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
9. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to them at their address furnished to the Company in writing for
the purpose of communications hereunder or, if sent to the Company, will
be mailed, delivered or telegraphed and confirmed to it at 142 Doty
Street, Fond du Lac, Wisconsin 54935, Attention: Chairman and Chief
Executive Officer.
10. Successors. The Terms Agreement (including the provisions of
this Agreement) will inure to the benefit of and be binding upon the
Company and such Underwriters as are identified in the Terms Agreement and
their respective successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will have any right
or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act
for the several Underwriters in connection with the financing described in
the Terms Agreement, and any action under such Terms Agreement (including
the provisions of this Agreement) taken by the Representatives jointly or
by the Lead Underwriter will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of
New York, without regard to principles of conflicts of laws.
<PAGE>
ANNEX I
(Three copies of this Delayed Delivery Contract should be
signed and returned to the address shown below so as to
arrive not later than 9:00 A.M., New York time,
on ..............................., 19...*.)
* Insert date which is third full business day prior to Closing Date
under the Terms Agreement.
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]
GIDDINGS & LEWIS, INC.
c/o CS FIRST BOSTON CORPORATION
Park Avenue Plaza
New York, N.Y. 10055
Attention: [Insert name of CS First Boston Corporate Finance
Officer]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Giddings & Lewis,
Inc., a Wisconsin corporation ("Company"), and the Company agrees to sell
to the undersigned, [If one delayed closing, insert as of the date hereof,
for delivery on , 19 ("Delivery Date"),]
[$]..............
principal amount of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated , 19
and a Prospectus Supplement dated , 19 relating
thereto, receipt of copies of which is hereby acknowledged, at % of the
principal amount thereof plus accrued interest, if any, and on the further
terms and conditions set forth in this Delayed Delivery Contract
("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal
amounts set forth below:
Delivery Date Principal
Amount
. . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . .
Each of such delivery dates is hereinafter referred to as a Delivery
Date.]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on the each Delivery Date shall be made to the
Company or its order by certified or official bank check in New York
Clearing House (next day) funds at the office of at
.M. on the such Delivery Date upon delivery to the undersigned of
the Securities to be purchased by the undersigned for delivery on such
Delivery Date in definitive fully registered form and in such
denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to the such Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as
of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned
to take delivery of and make payment for, Securities on the each Delivery
Date shall be subject only to the conditions that (1) investment in the
Securities shall not at the such Delivery Date be prohibited under the
laws of any jurisdiction in the United States to which the undersigned is
subject and (2) the Company shall have sold to the Underwriters the total
principal amount of the Securities less the principal amount thereof
covered by this and other similar Contracts. The undersigned represents
that its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy copies of the opinion[s] of
counsel for the Company delivered to the Underwriters in connection
therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If this Contract is acceptable to
the Company, it is requested that the Company sign the form of acceptance
below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such counterpart is
so mailed or delivered.
Yours very truly,
(Name of Purchaser)
By
(Title of Signatory)
(Address of Purchaser)
Accepted, as of the above date.
GIDDINGS & LEWIS, INC.
By
[Insert Title]
GIDDINGS & LEWIS, INC.
OFFICER'S CERTIFICATE
Dated as of September 26, 1995
____________________
Setting Forth Terms of a Series of Unsecured Securities
7-1/2% Notes Due 2005
____________________
Pursuant to the Indenture
Dated as of August 7, 1995
<PAGE>
OFFICER'S CERTIFICATE
The undersigned, the Chairman and Chief Executive Officer, and
the Vice President-Finance and Secretary of Giddings & Lewis, Inc., a
Wisconsin corporation (the "Company"), hereby certify as provided below
pursuant to Section 301 of the Indenture dated as of August 7, 1995 (the
"Indenture") between the Company and Firstar Trust Company (the
"Trustee"). This Officer's Certificate is delivered, pursuant to
authority granted to the undersigned by resolutions adopted on June 28,
August 7 and August 23, 1995 by the Board of Directors of the Company, for
the purpose of creating and setting forth the terms of a series of
Securities to be issued pursuant to the Indenture. Capitalized terms not
otherwise defined herein are used as defined in the Indenture.
1. The Board of Directors of the Company has authorized the
creation by the Company of the series of Securities described below
pursuant to this Officer's Certificate and in accordance with the
Indenture.
2. The title of the Securities shall be "7-1/2% Notes Due
2005" (herein called the "Notes").
3. The aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture is limited to
$100,000,000, except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Notes as provided in Section 304, 305, 306, 906, 1107 or 1405 of the
Indenture and except for Notes which, pursuant to Section 303 of the
Indenture, are deemed never to have been authenticated and delivered
thereunder.
4. The principal of the Notes shall be payable on October 1,
2005.
5. The Notes shall bear interest at the rate of 7-1/2% per
annum; such interest shall accrue from October 2, 1995 (or from the most
recent Interest Payment Date to which interest on the Notes has been paid
or provided for); the Interest Payment Dates on which such interest shall
be payable shall be April 1 and October 1 in each year, commencing April
1, 1996; and the Regular Record Dates for the determination of Holders to
whom interest is payable shall be the March 15 or September 15 next
preceding each Interest Payment Date.
6. The principal of and interest on the Notes shall be payable
at the Corporate Trust Office in Milwaukee, Wisconsin.
7. The Notes shall not be redeemable prior to maturity, shall
not be subject to any sinking fund and shall not be repurchasable at the
option of a Holder.
8. Defeasance under Section 1302 and covenant defeasance under
Section 1303 of the Indenture shall be applicable to the Notes.
9. The Notes shall initially be issued in whole in the form of
one or more Global Securities. The Depository Trust Company, a clearing
agency registered under the Securities Exchange Act of 1934, as amended,
shall serve as the Depositary for such Global Security or Securities. For
so long as the Depository Trust Company shall be the Depositary, all Notes
shall be registered in its name or in the name of a nominee thereof.
While the Notes are evidenced by one or more Global Securities, the
Depositary or its nominee, as the case may be, shall be the sole Holder
thereof for all purposes under the Indenture. Neither the Company nor the
Trustee shall have any responsibility or the obligation to the
Depositary's participants or the beneficial owners for whom they act with
respect to their receipt from the Depositary of payments on the Notes or
notices given under the Indenture. The Global Security or Securities
provided for hereunder shall bear the legends provided for below and such
other legend or legends as may be required from time to time by the
Depositary.
10. The form of the Notes shall be substantially as follows:
[Form of 7-1/2% Note Due 2005]
[Form of face of Note]
This Note is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Note is exchangeable for Notes registered
in the name of a person other than the Depositary or its nominee only in
the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary.
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York Corporation ("DTC"), to Issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
GIDDINGS & LEWIS, INC.
7-1/2% Note Due 2005
CUSIP 375048 AB 1
No. __________ $_______________
GIDDINGS & LEWIS, INC., a Wisconsin corporation (hereinafter
called the "Company", which term includes any successor corporation under
the Indenture hereinafter referred to), for value received, hereby
promises to pay to _____________________, or registered assigns, the sum
of ___________________________ Dollars on October 1, 2005, and to pay
interest thereon from October 2, 1995, or from the most recent Interest
Payment Date to which interest has been paid, semi-annually on April 1 and
October 1 in each year, commencing April 1, 1996, at the rate of 7-1/2%
per annum until the principal hereof has been paid or duly provided for in
accordance with said Indenture. The interest so payable, and punctually
paid, on any Interest Payment Date will, as provided in said Indenture, be
paid to the Person in whose name this Security (herein called a "Note"
and, together with all other Securities of the same series, herein called
the "Notes") or one or more Predecessor Securities, as defined in said
Indenture, is registered at the close of business on the Regular Record
Date (the March 15 or September 15 next preceding each Interest Payment
Date) for such interest. Any such interest not so punctually paid shall
forthwith cease to be payable to the registered Holder on such Regular
Record Date, and may be paid to the Person in whose name this Note (or one
or more Predecessor Securities) is registered at the close of business on
a Special Record Date for the payment of such defaulted interest to be
fixed by the Trustee, notice of which shall be given to Holders of the
Notes not less than ten days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed,
and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Payment of principal and interest due on this Note at Maturity
will be paid by wire transfer in immediately available funds against
presentation and surrender of this Note by the Holder hereof at the office
of the Paying Agent, but only if appropriate wire transfer instructions
have been received in writing (or by such other means as deemed acceptable
by the Paying Agent) by the Paying Agent not less than 15 days before
Maturity. In the event such instructions are not received by such 15th
day, such principal and interest will be paid by check against such
presentation and surrender.
All interest payments on this Note (other than interest due at
Maturity) will be made by mailing a check for such interest, payable to or
upon the written order of the Person in whose name this Note is
registered, to the address of such Person as it appears on the Security
Register. Notwithstanding the foregoing, any Holder of Securities of any
series issued under the Indenture (including the Notes) which pay interest
on the same Interest Payment Date and which are in an aggregate principal
amount in excess of $10,000,000 may elect to receive payments of interest
with respect to such Securities (other than interest due at Maturity) via
wire transfer in immediately available funds to a bank in New York, New
York (or other bank approved by the Paying Agent) by making arrangements
therefor in writing (or such other means as deemed acceptable by the
Paying Agent) with the Paying Agent not later than the Regular Record Date
immediately preceding the applicable Interest Payment Date.
The provisions of this Note are continued on the reverse hereof
and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof, by manual
signature of one of its authorized officers, this Note shall not be
entitled to any benefit under the Indenture, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed under its corporate seal.
Date: ____________________
GIDDINGS & LEWIS, INC.
[SEAL]
By:
[Name]
[Title]
Attest:
Secretary
[Form of Reverse of Note]
This Note is one of a duly authorized series of Securities of
the Company (herein called the "Securities"), issued and to be issued in
one or more series under an Indenture dated as of August 7, 1995 (herein
called the "Indenture"), between the Company and Firstar Trust Company, as
Trustee (herein called the "Trustee", which term includes any successor
Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights thereunder of the Company, the Trustee and the Persons
in whose names the Securities are registered (herein called the
"Holders"), and the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the securities of the
series designated on the face hereof, limited in aggregate principal
amount to $100,000,000.
This Note shall not be redeemable prior to Maturity.
The Indenture contains provisions for defeasance at any time of
the entire indebtedness on this Note upon compliance by the Company with
certain conditions set forth therein, which provisions apply to this Note.
If an Event of Default with respect to Notes of this series
shall occur and be continuing, the principal of the Notes of this series
may be declared due and payable in the manner and with the effect provided
in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of each series to
be affected under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of each series at the time Outstanding,
on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of
any Note issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this
Note.
Unless this Note is defeased and discharged as provided in the
Indenture, no reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, this Note is transferable on the Security Register of
the Company, upon surrender of this Note for registration of transfer at
the Corporate Trust Office and at any place where the principal of and
interest on this Note are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the registered Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes
of this series and of like tenor, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without coupons
and, only in denominations of $1,000 or any integral multiple of $1,000.
As provided in the Indenture and subject to certain limitations therein
set forth, the Notes are exchangeable for a like aggregate principal
amount of Notes and of like tenor of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Company or the Trustee may require payment
of a sum sufficient to cover any tax or other governmental charge payable
in connection therewith as provided in the Indenture.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is registered as the
owner hereof for the purpose of receiving payment as herein provided and
for all other purposes whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to
the contrary.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
[Form of Certificate of Authentication]
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRSTAR TRUST COMPANY,
as Trustee
By
Authorized Signatory
* * *
IN WITNESS WHEREOF, we have set our hands and the corporate seal
of the Company as of the day and year first above written.
GIDDINGS & LEWIS, INC.
By /s/ Joseph R. Coppola
Joseph R. Coppola
Chairman and Chief Executive Officer
(CORPORATE SEAL) By /s/ Richard c. Kleinfeldt
Richard C. Kleinfeldt
Vice President-Finance and Secretary
EXHIBIT 12
<TABLE>
GIDDINGS & LEWIS, INC.
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(In thousands, except ratios)
<CAPTION>
Six
Months
Ended Year Ended December 31,
July 2,
1995 1994 1993 1992 1991 1990
<S> <C> <C> <C> <C> <C> <C>
Earnings Before Taxes $27,119 $77,606 $70,027 $46,024 $30,137 $26,393
Add:
Interest Expense $3,453 $1,720 $4,141 $10,009 $1,524 $184
Estimated Interest Component of
Rental Payments $406 $733 $719 $836 $499 $253
Earnings, as Adjusted $30,978 $80,059 $74,887 $56,869 $32,160 $26,830
Fixed Charges:
Interest Expense $3,453 $1,720 $4,141 $10,009 $1,524 $184
Estimated Interest Component of
Rental Payments $406 $733 $719 $836 $499 $253
Total Fixed Charges $3,859 $2,453 $4,860 $10,845 $2,023 $437
Ratio of Earnings to Fixed
Charges 8.0x 32.6x 15.4x 5.2x 15.9x 61.4x
</TABLE>
