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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) July 22, 1997 (July 22, 1997)
TEREX CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
Delaware 0-16498 13-1531521
(STATE OR OTHER JURISDICTION (COMMISSION (IRS EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NO.)
500 Post Road East, Westport, Connecticut 06880
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Registrant's telephone number, including area code (203) 222-7170
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 5. OTHER EVENTS
On July 22, 1997, Terex Corporation, a Delaware corporation (the
"Company"), entered into an Underwriting Agreement (the "Underwriting
Agreement") with Credit Suisse First Boston Corporation, Salomon Brothers Inc,
Furman Selz LLC, and J.P. Morgan Securities Inc., as representatives of the
underwriters named in Schedule A to the Underwriting Agreement (the
"Underwriters"), and Randolph W. Lenz (the "Selling Stockholder"), providing for
the purchase by the Underwriters from the Company and the Selling Stockholder of
5,000,000 shares of the Company's Common Stock, par value $.01 per share (the
"Shares"), and 2,000,000 Shares, respectively, at a purchase price of $19.50 per
Share (the "Purchase Price"). In addition, pursuant to the Underwriting
Agreement, the Underwriters were granted the option to purchase up to an
additional 700,000 Shares at the Purchase Price to cover any over-allotments.
The Shares were registered as part of the Company's Registration Statement on
Form S-3 (No. 333-27749), which was declared effective by the Securities and
Exchange Commission on July 22, 1997.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Businesses Acquired.
None
(b) Pro Forma Financial Information.
None
(c) Exhibits
1 Underwriting Agreement
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 hereunto duly authorized.
Date: July 22, 1997
TEREX CORPORATION
By:/s/ Joseph F. Apuzzo
---------------------
Joseph F. Apuzzo
Vice President - Finance and Controller
-2-
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7,000,000 SHARES
TEREX CORPORATION
COMMON STOCK
(PAR VALUE $.01)
UNDERWRITING AGREEMENT
July 22, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
FURMAN SELZ LLC
J.P. MORGAN SECURITIES INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Terex Corporation, a Delaware corporation ("Company"),
proposes to issue and sell 5,000,000 shares of its Common Stock, par value $.01
per share ("Securities"), and Randolph W. Lenz ("Selling Stockholder") proposes
to sell an aggregate of 2,000,000 outstanding shares of the Securities (such
7,000,000 shares of Securities being hereinafter referred to as the "Firm
Securities"). The Company also proposes to sell to the Underwriters (as defined
below), at the option of the Underwriters, an aggregate of not more than 700,000
additional shares of its Securities (such 700,000 additional shares of
Securities being hereinafter referred to as the "Optional Securities"). The Firm
Securities and the Optional Securities are herein collectively called the
"Offered Securities". The Company and the Selling Stockholder hereby agree with
the several Underwriters named in Schedule A hereto ("Underwriters") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholder.
(a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-27749), including a
prospectus, relating to the Offered Securities has been filed with the
Securities and Exchange Commission ("Commission") and either (A) has been
declared effective under the Securities Act of 1933 ("Act") and is not proposed
to be amended or (B) is proposed to be amended by amendment or post-effective
amendment. If such registration statement (the "initial registration statement")
has been declared effective, either (A) an additional registration statement
(the "additional registration statement") relating to the Offered Securities may
have been filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)")
under the Act and, if so filed, has become effective upon filing pursuant to
such Rule and the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement, or (B)
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such an additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon filing
pursuant to such Rule and upon such filing the Offered Securities will all have
been duly registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the Company does not
propose to amend the initial registration statement or if an additional
registration statement has been filed and the Company does not propose to amend
it, and if any post-effective amendment to either such registration statement
has been filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become effective
upon filing pursuant to Rule 462(c) ("Rule 462(c)") under the Act or, in the
case of the additional registration statement, Rule 462(b). For purposes of this
Agreement, "Effective Time" with respect to the initial registration statement
or, if filed prior to the execution and delivery of this Agreement, the
additional registration statement, means (A) if the Company has advised the
Representatives that it does not propose to amend such registration statement,
the date and time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c), or (B) if the Company has
advised the Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and time as of
which such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been filed prior to
the execution and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "Effective Time" with respect to
such additional registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule 462(b).
"Effective Date" with respect to the initial registration statement or the
additional registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its Effective Time,
including all material incorporated by reference therein, including all
information contained in the additional registration statement (if any) and
deemed to be a part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all information (if
any) deemed to be a part of the initial registration statement as of its
Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is
hereinafter referred to as the "Initial Registration Statement". The additional
registration statement, as amended at its Effective Time, including the contents
of the initial registration statement incorporated by reference therein and
including all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule 430A(b), is
hereinafter referred to as the "Additional Registration Statement". The Initial
Registration Statement and the Additional Registration Statement are hereinafter
referred to collectively as the "Registration Statements" and individually as a
"Registration Statement". The form of prospectus relating to the Offered
Securities, as first filed with the Commission pursuant to and in accordance
with Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, including all material
incorporated by reference in such prospectus, 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.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all material respects to the requirements of the Act and
the published 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, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed or will conform, in
all material respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue statement of a
material fact and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and (C) on the date of this Agreement, the Initial Registration
Statement and, if the Effective Time of the Additional Registration Statement is
prior to
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the execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus pursuant to
Rule 424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all material respects
to the requirements of the Act and the Rules and Regulations, and neither of
such documents includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading. If the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement: on the Effective
Date of the Initial Registration Statement, the Initial Registration Statement
and the Prospectus will conform in all material respects to the requirements of
the Act and the Rules and Regulations, neither of such documents will include
any untrue statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under which they were
made) not misleading, and no Additional Registration Statement has been or will
be filed. The two preceding sentences do not apply to statements in or omissions
from a Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such
information is that described as such in Section 7(d) hereof.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of Delaware,
with the 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 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 be so qualified and in good
standing could not reasonably be expected, individually or in the aggregate, to
have a material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries taken as
a whole (a "Material Adverse Effect").
(iv) Each subsidiary of the Company that (i) generated 5% or
more of the revenues, (ii) generated 5% or more of the operating income, or
(iii) held 5% or more of the assets, in each case, of the Company and its
subsidiaries on a consolidated basis as reflected in the financial statements
included in the Prospectus under the heading "Pro Forma Financial Information"
(each, a "Significant Subsidiary"), has been duly incorporated and is an
existing corporation in good standing under the laws of the jurisdiction of its
incorporation, with the corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and each Significant
Subsidiary of the Company is duly qualified to do business as a foreign
corporation in good standing 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 be so qualified and in good standing could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect; all of the issued and outstanding capital stock of each
Significant Subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and, except as expressly disclosed
or incorporated by reference in the Prospectus and except for pledges in favor
of United States Trust Company of New York, as collateral agent for the holders
of the Company's 13.25% Senior Secured Notes due 2002, the capital stock of each
Significant Subsidiary owned by the Company, directly or through subsidiaries,
is owned free from liens, encumbrances and defects.
(v) The Offered Securities, when issued pursuant to this
Agreement, and all other outstanding shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable and
conform in all material respects to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive rights with
respect to the Securities.
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(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with this
offering.
(vii) Except for (a) that certain Registration Rights
Agreement, dated as of December 9, 1994, by and among Randolph W. Lenz, David J.
Langevin, Marvin B. Rosenberg and the Company, (b) that certain Warrant
Registration Rights Agreement, dated as of December 20, 1993, by and among the
Company and the parties signatory thereto, (c) that certain Registration Rights
Agreement, dated May 9, 1995, between the Company, Jefferies & Company, Inc.,
and Dillon, Read & Co. Inc., and (d) that certain Agreement, dated as of
November 2, 1995, between the Company and the Selling Stockholder, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such securities
in the securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Act.
(viii) The Company has filed an application to list the
Offered Securities on the New York Stock Exchange and has received notification
that the listing has been approved subject to notice of issuance.
(ix) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required to be
obtained or made by the Company for the performance by the Company of its
obligations under this Agreement, except such as have been obtained and made
under the Act and such as may be required under state securities laws.
(x) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, 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 Significant Subsidiary of the Company or
any of their properties, or any agreement or instrument to which the Company or
any Significant Subsidiary is a party or by which the Company or any Significant
Subsidiary is bound or to which any of the properties of the Company or any
Significant Subsidiary is subject, or the charter or by-laws of the Company or
any Significant Subsidiary, except in each such case, (i) that any rights to
indemnity and contribution herein may be limited by federal and state securities
laws and public policy considerations and (ii) for such breaches, violations and
defaults as could not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and
its Significant Subsidiaries have good title to all real properties and all
other properties and assets owned by them that are material to the Company and
its subsidiaries taken as a whole, in each case free from liens and encumbrances
that would materially affect the value thereof or materially interfere with the
use made or to be made thereof by them; and except as disclosed in the
Prospectus, the Company and its Significant Subsidiaries hold any leased real or
personal property that is material to the Company and its subsidiaries taken as
a whole under valid and enforceable leases with no exceptions that would
materially interfere with the use made or to be made thereof by them.
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(xiii) The Company and its subsidiaries possess all
certificates, authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or modification of
any such certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, could reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect.
(xiv) Except as disclosed in the Prospectus, no labor strike,
slowdown, stoppage or dispute (except for routine disciplinary and grievance
matters) with the employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent, that could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(xv) The Company and its subsidiaries own, possess, have the
right to use, or can acquire on reasonable terms, adequate trademarks, trade
names and other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property (collectively,
"intellectual property rights") used in the conduct the business now operated by
them, except for such failures to so own, possess or have the right to use or
acquire such intellectual property rights as which could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect,
and have not received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries (i) 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"), (ii) owns or operates any real property
that to the knowledge of the Company is contaminated with any substance that is
subject to any environmental laws, (iii) is to the knowledge of the Company
liable for any off-site disposal or contamination pursuant to any environmental
laws, or (iv) is to the knowledge of the Company subject to any claim relating
to any environmental laws, in each case, which violation, contamination,
liability or claim would individually or in the aggregate have a Material
Adverse Effect; and the Company is not aware of any pending investigation which
might lead to such a claim.
(xvii) 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 have a reasonable
likelihood of being adversely determined and, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate have
a Material Adverse Effect, or would materially and adversely affect the ability
of the Company to perform its obligations under this Agreement, or which are
otherwise material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened in writing or, to the
Company's knowledge, contemplated.
(xviii) The financial statements included or incorporated by
reference in each Registration Statement and the Prospectus present fairly in
all material respects the financial position, as applicable, (a) of the Company
and its consolidated subsidiaries, (b) of PPM Cranes, Inc. and its consolidated
subsidiaries and (c) of the Simon Access Companies (as defined in the
Prospectus), in each case as of the dates shown and their results of operations
and cash flows for the periods shown (subject in the case of interim financial
statements to normal year-end adjustments), and such financial statements have
been prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis and the schedules included in each
Registration Statement present fairly the information required to be stated
therein. The assumptions used in preparing the pro forma financial statements
included
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in each Registration Statement and the Prospectus provide a reasonable basis for
presenting the significant effects directly attributable to the transactions or
events described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding historical
financial statement amounts.
(xix) Except as disclosed in the Prospectus, since the date of
the latest financial statements included in the Prospectus, there has been no
material adverse change, nor any development or event that could reasonably be
expected to result in a 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, and, except as disclosed in or contemplated by
the Prospectus, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(xx) 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.
(xxi) Each of the Standstill Agreement dated as of June 27,
1997, by and among the Company, the Selling Stockholder and the other parties
thereto (the "Main Standstill Agreement") and the Agreement dated as of June 27,
1997, by and among the Company, the Selling Stockholder and the Connecticut Bank
of Commerce (the "CBC Standstill Agreement" and, together with the Main
Standstill Agreement, the "Standstill Agreements") has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding obligation of the Company in accordance with its 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. The execution, delivery and performance of the
Standstill Agreements by the Company, and the consummation of the transactions
therein contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company any subsidiary of the Company or
any of their properties, or any agreement or instrument 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 bylaws of the Company or any such subsidiary, except,
in each case, for such breaches, violations or defaults as could not reasonably
be expected, individually or in the aggregate, to materially and adversely
affect the ability of the Company to perform its obligations thereunder.
(b) The Selling Stockholder represents and warrants to, and agrees
with, the several Underwriters that:
(i) Except for such liens and encumbrances as will no longer
be in effect as a result of the payments described in Section 3 below, the
Selling Stockholder has and on the First Closing Date will have valid and
unencumbered title to the Offered Securities to be delivered by or on behalf of
the Selling Stockholder in accordance with the terms of the Custody Agreement
(as defined below) on such Closing Date and full right, power and authority to
enter into this Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by or on behalf of the Selling Stockholder in
accordance with the terms of the Custody Agreement on such Closing Date
hereunder; and upon the delivery of and payment for the Offered Securities on
each Closing Date hereunder pursuant to the terms of this Agreement and, with
respect to the First Closing Date, pursuant to the terms of the Custody
Agreement, the several Underwriters will acquire valid and unencumbered title to
the Offered Securities to be delivered by the Selling Stockholder on such
Closing Date.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the
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Initial Registration Statement conformed in all material respects to the
requirements of the Act and the Rules and Regulations and did not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
(B) on the Effective Date of the Additional Registration Statement (if any),
each Registration Statement conformed, or will conform, in all material respects
to the requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material fact and did
not omit, or will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and (C) on
the date of this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration Statement
each conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all material respects
to the requirements of the Act and the Rules and Regulations, and neither of
such documents includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading. If the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement: on the Effective
Date of the Initial Registration Statement, the Initial Registration Statement
and the Prospectus will conform in all material respects to the requirements of
the Act and the Rules and Regulations, neither of such documents will include
any untrue statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under which they were
made) not misleading; provided, however, that the two preceding sentences shall
only apply to statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company by the
Selling Stockholder specifically for use therein, it being understood and agreed
that the only such information is that described as such in Section 7(c) hereof.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Selling Stockholder and any
person that would give rise to a valid claim against the Selling Stockholder or
any Underwriter for a brokerage commission, finder's fee or other like payment
in connection with this offering.
(iv) The power of attorney signed by the Selling Stockholder
(the "Power of Attorney") appointing Thomas S. Gallagher as his attorney-in-fact
to the extent set forth therein with regard to the transactions contemplated
hereby and by the Registration Statements and the Standstill Agreements has been
duly authorized, executed and delivered by or on behalf of the Selling
Stockholder and is a valid and binding instrument of the Selling Stockholder
enforceable in accordance with its terms, and, pursuant to such power of
attorney, the Selling Stockholder has authorized Thomas S. Gallagher to execute
and deliver on his behalf this Agreement, the Standstill Agreements, and any
other documents necessary or desirable in connection with transactions
contemplated hereby and to deliver the Securities to be sold by the Selling
Stockholder pursuant to this Agreement.
(v) The execution and delivery by the Selling Stockholder of,
and performance by the Selling Stockholder of its obligations under, this
Agreement and the Custody Agreement, and the execution and delivery of the Power
of Attorney by the Selling Stockholder, and the consummation of the transactions
herein and therein contemplated, will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Selling Stockholder or any
affiliate of the Selling Stockholder or any of their properties, or any
agreement or instrument to which the Selling Stockholder or any such affiliate
is a party or by which the Selling Stockholder or any such affiliate is bound or
to which any of the properties of the Selling Stockholder or any such affiliate
is subject, or, if
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applicable, the charter or by-laws of any such affiliate, except, in each such
case, that any rights to indemnity and contribution herein may be limited by
federal and state securities law and public policy considerations.
(vi) The execution and delivery by or on behalf of the Selling
Stockholder or any affiliate thereof of the Standstill Agreements, and the
performance of their respective obligations thereunder, will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over each
party thereto other than the Company or any of their properties, or any
agreement or instrument to which any such party is a party or by which any such
party is bound or to which any of the properties of any such party is subject,
or, if applicable, the charter or by-laws of any such party, except, in each
case, for such breaches, violations or defaults as could not reasonably be
expected, individually or in the aggregate, to adversely affect the performance
by the Selling Stockholder or any affiliate thereof of their respective
obligations thereunder.
(vii) This Agreement has been duly authorized, executed and
delivered by Thomas S. Gallagher on behalf of the Selling Stockholder pursuant
to the Power of Attorney.
(viii) The Standstill Agreements have been duly authorized,
executed and delivered by each party thereto other than the Company, and
constitute valid and legally binding obligations of each such party 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; the
Custody Agreement has been duly authorized, executed and delivered by the
Selling Stockholder, and constitutes a valid and legally binding obligation of
the Selling Stockholder in accordance with its 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.
(ix) The representations and warranties of each party to the
Standstill Agreements other than the Company contained in the Standstill
Agreements are true and correct on the date hereof with the force and effect as
if made on the date hereof and each such party has complied in all material
respects with all agreements and obligations to be performed by it under the
Standstill Agreements.
(x) None of the Securities registered in the name of the
Selling Stockholder as set forth on Exhibit B to the Main Standstill Agreement
are subject to an arrangement that would be deemed to result in a change of
ownership of such Securities for purposes of Section 382 of the Internal Revenue
Code of 1986, as amended.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and the Selling Stockholder
agree, severally and not jointly, to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company and
the Selling Stockholder, at a purchase price of $19.50 per share, that number of
Firm Securities (rounded up or down, as determined by Credit Suisse First Boston
Corporation ("CSFBC") in its discretion, in order to avoid fractions) obtained
by multiplying 5,000,000 Firm Securities in the case of the Company and
2,000,000 Firm Securities in the case of the Selling Stockholder, in each case
by a fraction the numerator of which is the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule A hereto and the denominator
of which is the total number of Firm Securities.
On or before the First Closing Date (as defined below), certificates in
negotiable form for the Offered Securities to be sold by the Selling Stockholder
hereunder will be in the custody of American Stock Transfer & Trust Company (the
"Custodian") pursuant to the Custody Agreement, dated July 22, 1997,
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among the Selling Stockholder, the Custodian and the other parties thereto (the
"Custody Agreement"). The Selling Stockholder agrees that the shares represented
by such certificates are subject to the interests of the Underwriters hereunder,
that the arrangements made by the Selling Stockholder for such custody are to
that extent irrevocable, and that the obligations of the Selling Stockholder
hereunder shall not be terminated by operation of law, whether by the death of
the Selling Stockholder or the occurrence of any other event. If the Selling
Stockholder should die, or if any other such event should occur, before the
delivery of the Offered Securities hereunder, such Offered Securities shall be
delivered by the Custodian in accordance with the terms and conditions of this
Agreement and the Custody Agreement as if such death or other event had not
occurred, regardless of whether or not the Custodian shall have received notice
of such death or other event.
The Company will deliver 5,000,000 Firm Securities and the Selling
Stockholder (through the Custodian in accordance with the terms of the Custody
Agreement) will deliver 2,000,000 Firm Securities to the Representatives for the
accounts of the Underwriters, against payment of the purchase price in Federal
(same day) funds by wire transfer (i) to an account at a United States financial
institution designated in advance in writing by the Company in the case of
5,000,000 shares of Firm Securities, and (ii) in such amounts and to such
account(s) at United States financial institutions designated in advance in
writing by the Selling Stockholder in the case of 2,000,000 shares of Firm
Securities, at the office of Skadden, Arps, Slate, Meagher & Flom LLP, at 9:00
A.M., New York time, on July 28, 1997, or at such other time not later than
seven full business days thereafter as CSFBC and the Company determine, such
time being herein referred to as the "First Closing Date". The certificates for
the Firm Securities to be so delivered will be in definitive form, in such
denominations and registered in such names as CSFBC requests and will be made
available for checking and packaging at the above office at least 24 hours prior
to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from time
to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities. The Company
agrees to sell to the Underwriters the number of Optional Securities specified
in such notice and the Underwriters agree, severally and not jointly, to
purchase such Optional Securities. Such Optional Securities shall be purchased
for the account of each Underwriter in same proportion as the number of Firm
Securities set forth opposite such Underwriter's name in Schedule A hereto bears
to the total number of Firm Securities (subject to adjustment by CSFBC to
eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) funds by wire transfer to an
account at a United States financial institution designated in advance in
writing by the Company, at the office of Skadden, Arps, Slate, Meagher & Flom
LLP. The certificates for the Optional Securities being purchased on each
Optional Closing Date will be in definitive form, in such denominations and
registered in such names as CSFBC requests upon reasonable notice prior to such
Optional Closing Date and will be made available for checking and packaging at
the above office at least 24 hours in advance of such Optional Closing Date.
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4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholder. The
Company agrees with the several Underwriters and the Selling Stockholder that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will file the
Prospectus with the Commission pursuant to and in accordance with subparagraph
(1) (or if applicable and if consented to by CSFBC, subparagraph (4)) of Rule
424(b) not later than the earlier of (A) the second business day following the
execution and delivery of this Agreement or (B) the fifteenth business day after
the Effective Date of the Initial Registration Statement. The Company will
advise CSFBC promptly of any such filing pursuant to Rule 424(b). If the
Effective Time of the Initial Registration Statement is prior to the execution
and delivery of this Agreement and an additional registration statement is
necessary to register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and delivery, the
Company will file the additional registration statement or, if filed, will file
a post-effective amendment thereto with the Commission pursuant to and in
accordance with Rule 462(b) on or prior to 10:00 P.M., New York time, on the
date of this Agreement or, if earlier, on or prior to the time the Prospectus is
printed and distributed to any Underwriter, or will make such filing at such
later date as shall have been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to amend
or supplement the initial or any additional registration statement as filed or
the related prospectus or the Initial Registration Statement, the Additional
Registration Statement (if any) or the Prospectus and will not effect such
amendment or supplementation without CSFBC's consent, which consent shall not be
unreasonably withheld or delayed; and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if its Effective
Time is subsequent to the execution and delivery of this Agreement) and of any
amendment or supplementation of a Registration Statement or the Prospectus and
of the institution by the Commission of any stop order proceedings in respect of
a Registration Statement and will use its reasonable 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 will promptly notify CSFBC 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 CSFBC'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 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement (which need not be audited) covering a
period of at least 12 months beginning after the Effective Date of the Initial
Registration Statement (or, if later, the Effective Date of the Additional
Registration Statement) which will satisfy the provisions of Section 11(a) of
the Act. For the purpose of the preceding sentence, "Availability Date" means
the 45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year, "Availability Date"
means the 90th day after the end of such fourth fiscal quarter.
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(e) The Company will furnish to the Representatives copies of each
Registration Statement (five of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a prospectus
relating to the Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the Prospectus and all
amendments and supplements to such documents, in each case in such quantities as
CSFBC reasonably requests. The Prospectus shall be so furnished on or prior to
3:00 P.M., New York time, on the business day following the later of the
execution and delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other such documents shall be so furnished as soon
as available. 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 under the laws of such jurisdictions as CSFBC reasonably
designates and will continue such qualifications in effect so long as required
for the distribution.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a copy
of its annual report to stockholders for such year; and the Company will furnish
to the Representatives 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, as amended (the "Exchange Act"), or mailed to
stockholders.
(h) For a period of 180 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell, contract
to sell, announce their intention to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration statement
under the Act relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of CSFBC, and
the Company shall, concurrently with the execution of this Agreement, deliver an
agreement executed by each of the officers and directors of the Company listed
on Schedule B hereto to the effect that each such person will not engage in any
of the foregoing transactions (other than bona fide pledges) with respect to any
Securities or securities convertible into or exchangeable for any Securities, in
each case beneficially owned by such person during such period. The foregoing
shall not apply to (i) any Securities issuable upon the exercise or redemption
of an option or warrant or the conversion or exchange of a security, in each
case outstanding on the date of the Prospectus and in accordance with its terms
of the respective securities, (ii) any securities of the Company sold or granted
pursuant to the Company's incentive and other benefit plans as in effect as of
the date of the Prospectus, (iii) any shares of its Securities issued upon
exercise of the Company's issued and outstanding Equity Rights in accordance
with the terms thereof and (iv) any warrants or securities convertible into its
Securities issued in exchange for any of the Company's warrants, options or
Equity Rights outstanding on the date of the Prospectus.
(i) (1) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the obligations of
the Company under this Agreement, for any filing fees and other expenses
(including reasonable fees and disbursements of counsel) in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as CSFBC reasonably designates and the printing of memoranda
relating thereto, for the filing fee incident to the review by the National
Association of Securities Dealers, Inc. of the Offered 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 the Offered Securities and for expenses incurred in distributing
preliminary prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters.
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(2) The Selling Stockholder agrees with the several
Underwriters that it will pay or cause to be paid all expenses incident to the
performance of the obligations of the Selling Stockholder under this Agreement,
including but not limited to fees and disbursements of its counsel and any
transfer taxes on the sale by the Selling Stockholders of the Offered Securities
to the Underwriters.
(j) The Selling Stockholder agrees to deliver to CSFBC, attention:
Transactions Advisory Group, on or prior to the First Closing Date a properly
completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations in
lieu thereof).
(k) The Company agrees that it will use the net proceeds to it from
the Offered Securities in the manner described in the Prospectus under the
caption "Use of Proceeds". The Company further agrees that within two Business
Days of the First Closing Date it will, in accordance with terms of the
indenture (the "Indenture") relating to its Senior Secured Notes (as defined in
the Prospectus), give such notices to the trustee of the relevant Senior Secured
Notes and take such other actions as may be required to exercise, at the
earliest practicable date, its optional redemption right under Section 3.7 of
the Indenture with respect to the maximum amount of Senior Secured Notes
redeemable with such net proceeds under the terms of the Indenture and, if
applicable, the New Credit Facility (as defined in the Prospectus).
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company and the Selling
Stockholder herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company and the
Selling Stockholder of their obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall be on
or prior to the date of this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to such
Effective Time), of Price Waterhouse LLP confirming that they are independent
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 schedules
examined by them and included or incorporated by reference in the Registration
Statements comply as to 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 the unaudited financial statements included in
or incorporated by reference in the Registration Statements;
(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 of all subsidiaries of the Company for which such interim financial
statements are provided, inquiries of officials of the Company, and of such
subsidiaries, who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that caused them to
believe that:
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(A) the unaudited financial statements included in or
incorporated by reference in the Registration Statements do not comply as to
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 for them to
be in conformity with generally accepted accounting principles;
(B) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date not more than three
business days prior to the date of this Agreement, there was any change in the
capital stock or any material increase in long-term debt of the Company and its
consolidated subsidiaries, as compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(C) 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 or in the total or per share
amounts of consolidated net income;
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have occurred or may occur
or which are disclosed in such letter;
(iv) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review on pro forma
financial information as described in Statement on Standards for Attestation
Engagement No. 1, Reporting on Pro Forma Financial Statements, on the pro forma
financial statements included in or incorporated by reference in the
Registration Statements;
(v) on the basis of the review referred to in clause (iv)
above, nothing came to their attention that caused them to believe that the pro
forma financial statements included in or incorporated by reference in the
Registration Statements do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the related published
Rules and Regulations or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those statements; and
(vi) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial information
contained in the Registration Statements (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.
For purposes of this subsection (a), (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and delivery of
this Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statements is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "Registration Statements" shall
mean the Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time, and
(iii) "Prospectus" shall mean the prospectus included in the Registration
Statements. All financial statements and schedules included in
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<PAGE> 14
material incorporated by reference into the Prospectus shall be deemed included
in the Registration Statements for purposes of this subsection.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or such later date as shall have been consented to by CSFBC. If
the Effective Time of the Additional Registration Statement (if any) is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, the time the Prospectus is printed and distributed to
any Underwriter, or shall have occurred at such later date as shall have been
consented to by CSFBC. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Selling Stockholder, the Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event that
could reasonably be expected to result in a change, in the condition (financial
or other), business, properties or results of operations of the Company and its
subsidiaries taken as a whole, which, in the judgment of a majority in interest
of the Underwriters including the Representatives, is material and adverse to
the Company and its subsidiaries taken as a whole and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale of and
payment for 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 in effect on the date of this Agreement of any debt securities or
preferred stock 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 material 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 or New York 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 the 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 such
Closing Date, of Robinson Silverman Pearce Aronsohn & Berman LLP, counsel to the
Company, to the effect that:
(i) The Company and each Significant Subsidiary organized
under the laws of the State of Delaware have been duly incorporated and are
existing corporations in good standing under the laws of their respective
jurisdictions of incorporation, with corporate power and authority to own their
respective properties and conduct their respective businesses as described in
the Prospectus;
(ii) The Offered Securities, when issued pursuant to the
Underwriting Agreement, will be duly authorized and validly issued, are fully
paid and nonassessable and conform in all material respects to the description
thereof contained in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities under the charter or
by-laws of the Company or under Delaware law;
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(iii) Except for those agreements referred to in the
representation in Section 2(a)(vii) above, there are no contracts, agreements or
understandings known to such counsel between the Company and any person granting
such person the right to require the Company to include such securities in the
securities registered pursuant to the Registration Statement;
(iv) 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, as amended;
(v) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be obtained or
made by the Company or any Significant Subsidiary incorporated under the laws of
the State of New York or the State of Delaware ("Domestic Significant
Subsidiaries") under any Applicable Law (as defined) for the consummation of the
transactions contemplated by this Agreement in connection with the sale of the
Offered Securities, except such as have been obtained and made under the Act and
such as may be required under state securities laws (with respect to which such
counsel need express no opinion);
(vi) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company. The execution and delivery of, and
performance by the Company of its obligations under, this Agreement will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any Applicable Law or order known to such counsel of
any governmental agency or body or any court having jurisdiction over the
Company or any Domestic Significant Subsidiary or any material portion of their
respective properties (except that any rights to indemnity and contribution
herein may be limited by federal and state securities laws and public policy
considerations), or any agreement or instrument filed as an exhibit to the
Registration Statement or any Exchange Act filing incorporated by reference in
the Registration Statement, or the charter or by-laws of the Company or any
Domestic Significant Subsidiary;
(vii) The Initial Registration Statement was declared
effective under the Act at 11:00 a.m. on July 22, 1997, the Additional
Registration Statement (if any) was filed and became effective under the Act as
of the date and time (if determinable) specified in such opinion, the Prospectus
either was filed with the Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or was included in the
Initial Registration Statement or the Additional Registration Statement (as the
case may be), and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of a 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, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations; and that while such
counsel is not passing upon and does not assume responsibility for, and shall
not be deemed to have independently verified the accuracy, completeness or
fairness of the statements contained in any Registration Statement or any
Prospectus (except statements made under the caption "Description of Securities"
insofar as they relate to legal matters), such counsel shall state that no facts
have come to such counsel's attention in the course of participating with
officers and representatives of the Company in the preparation of a Registration
Statement (except for financial statements and schedules and other financial and
statistical data contained therein, as to which such counsel need express no
opinion) to lead it to believe that any part of a Registration Statement or any
amendment thereto, as of its effective date or as of such 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 or any amendment or supplement
thereto, as of its issue date or as of such 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
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Registration Statements and 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 such
counsel do not know of any legal or governmental proceedings required to be
described in a Registration Statement or the Prospectus which are not described
as required or of any contracts or documents of a character required to be
described in a Registration Statement or the Prospectus or to be filed as
exhibits to a Registration Statement which are not described and filed as
required; and
(viii) The Standstill Agreements have been duly authorized,
executed and delivered by the Company and constitute valid and legally binding
obligations of the Company in accordance with their terms. The execution and
delivery of, and performance by the Company of its obligations under, the
Standstill Agreements, will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, any rule,
regulation or order known to such counsel of any governmental agency or body or
any court, domestic or foreign, having jurisdiction over the Company or any
Domestic Significant Subsidiary or any material portion of their respective
properties (except that any rights to contribution and indemnity therein may be
limited by federal and state securities laws and public policy considerations),
or any agreement or instrument filed as an exhibit to the Registration Statement
or any Exchange Act filing incorporated by reference in the Registration
Statement, or the charter or by-laws of the Company or any Domestic Significant
Subsidiary.
Such counsel may state that, as it relates to enforceability, the opinions
expressed in clause (viii) are limited by (1) bankruptcy, insolvency, fraudulent
conveyance and similar laws affecting creditors' rights generally and (2)
equitable principles of general applicability. Such counsel may also qualify
such opinion in other respects reasonably acceptable to CSFBC.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of Marvin B. Rosenberg, general counsel of the Company, to the
effect that:
(i) The Company and each Significant Subsidiary incorporated
within the United States of America (the "Domestic Significant Subsidiaries")
have been duly incorporated and are existing corporations in good standing under
the laws of their respective jurisdictions of incorporation, with corporate
power and authority to own their respective properties and conduct their
respective businesses as described in the Prospectus; and the Company and each
Domestic Significant Subsidiary are duly qualified to do business as foreign
corporations in good standing in all other jurisdictions in which their
ownership or lease of property or the conduct of their business requires such
qualifications, except to the extent that the failure to be so qualified and in
good standing could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. Based on my review of
organizational documents (or English translations thereof) of each Significant
Subsidiary incorporated outside the United States of America (the "Foreign
Significant Subsidiaries") and interviews and statements of persons who are
informed as to the formation and status of the Foreign Significant Subsidiaries,
the Foreign Significant Subsidiaries have been duly incorporated and are
existing corporations in good standing under the laws of their respective
countries of organization, with corporate power and authority to own their
respective properties and conduct their respective businesses as described in
the Prospectus; based on my review of organizational documents (or English
translations thereof) of the Foreign Significant Subsidiaries and interviews and
statements of persons who are informed as to the formation and status of the
Foreign Significant Subsidiaries, the Foreign Significant Subsidiaries are duly
qualified to do business as foreign corporations in good standing in all other
jurisdictions in which their ownership or lease of property or the conduct of
their business requires such qualifications, except to the extent that the
failure to be so qualified and in good standing could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
(ii) Based upon my examination of the corporate stock books
and records of each of the Domestic Significant Subsidiaries and the corporate
stock books and records (or English translations
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thereof) of the Foreign Significant Subsidiaries and interviews and statements
of persons who are informed as to the status of the Foreign Significant
Subsidiaries, the Offered Securities, when issued in accordance with the
Underwriting Agreement, will be, and all other outstanding shares of the capital
stock of the Company and each Significant Subsidiary have been, duly authorized
and validly issued, are fully paid and nonassessable and conform in all material
respects to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to the
Offered Securities;
(iii) Except for those agreements referred to in the
representation set forth in Section 2(a)(vii) hereof, there are no contracts,
agreements or understandings known to such counsel between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act;
(iv) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required to be
obtained or made by the Company or any Significant Subsidiary under any
Applicable Law for the consummation of the transactions contemplated by this
Agreement in connection with the sale of the Offered Securities, except such as
have been obtained and made under the Act and such as may be required under
state securities laws (with respect to which such counsel need express no
opinion);
(v) The execution and delivery of, and performance by the
Company of its obligations under, this Agreement will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any Applicable Law or order known to such counsel of any governmental agency or
body or any court having jurisdiction over the Company or any Significant
Subsidiary or any of their respective properties (except that any rights to
indemnity and contribution herein may be limited by federal and state securities
laws and public policy considerations), or any agreement or instrument to which
the Company or any Significant Subsidiary is a party or by which the Company or
any Significant Subsidiary is bound or to which any of properties of the Company
or any Significant Subsidiary is subject, or the charter or by-laws of the
Company or any Significant Subsidiary.
(vi) The Registration Statement was declared effective under
the Act at 11:00 a.m. on July 22, 1997, the Additional Registration Statement
(if any) was filed and became effective under the Act as of the date and time
(if determinable) specified in such opinion, the Prospectus either was filed
with the Commission pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein or was included in the Registration
Statement or the Additional Registration Statement (as the case may be), and, to
the best of the knowledge of such counsel, no stop order suspending the
effectiveness of a 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, and each Registration Statement and the Prospectus,
and each amendment or supplement thereto, as of their respective effective or
issue dates, complied as to form in all material respects with the requirements
of the Act and the Rules and Regulations; and that while such counsel is not
passing upon and does not assume responsibility for, and shall not be deemed to
have independently verified the accuracy, completeness or fairness of the
statements contained in any Registration Statement or any Prospectus (except
statements made under the caption "Description of Securities" insofar as they
relate to legal matters), such counsel shall state that no facts have come to
such counsel's attention in the course of participating with officers and
representatives of the Company in the preparation of a Registration Statement
(except for financial statements and schedules and other financial and
statistical data contained therein, as to which such counsel need express no
opinion) to lead it to believe that any part of a Registration Statement or any
amendment thereto, as of its effective date or as of such 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
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<PAGE> 18
make the statements therein not misleading; or that the Prospectus or any
amendment or supplement thereto, as of its issue date or as of such 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 Statements and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are accurate 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 a
Registration Statement or the Prospectus which are not described as required or
of any contracts or documents of a character required to be described in a
Registration Statement or the Prospectus or to be filed as exhibits to a
Registration Statement which are not described or filed as required; and
(vii) This Agreement and the Standstill Agreements have each
been duly authorized, executed and delivered by the Company, and the Standstill
Agreements constitute valid and legally binding obligations of the Company in
accordance with their terms. The execution and delivery of, and performance by
the Company of its obligations under, the Standstill Agreements, will not result
in a breach or violation of any of the terms and provisions of, or constitute a
default under any Applicable Law or order of any governmental agency or body or
any court, domestic or foreign, having jurisdiction over the Company or any
Significant Subsidiary or any of their respective properties (except that any
rights to indemnity and contribution herein may be limited by federal and state
securities laws and public policy considerations), or any agreement or
instrument to which the Company or any Significant Subsidiary is a party or by
which the Company or any Significant Subsidiary is bound or to which any of the
properties of the Company or any Significant Subsidiary is subject, or the
charter or by-laws of the Company or any Significant Subsidiary.
Such counsel may state that, as it relates to enforceability, the
opinions expressed in clause (vii) are limited by (1) bankruptcy, insolvency,
fraudulent conveyance and similar laws affecting creditors' rights generally and
(2) equitable principles of general applicability. Such counsel may also qualify
such opinion in other respects reasonably acceptable to CSFBC.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of Sonnenschein Nath & Rosenthal, counsel for the Selling
Stockholder, to the effect that:
(i) Upon the delivery to the Custodian of a stock certificate
representing the Offered Securities to be sold by the Selling Stockholder to the
Underwriters pursuant to the Underwriting Agreement accompanied by a stock power
duly executed in blank by the Selling Stockholder, payment of the agreed
consideration for such Offered Securities in accordance with the provisions of
the Underwriting Agreement and receipt by Chase (as defined in the Custody
Agreement) of such consideration, and assuming the Underwriters have purchased
the Offered Securities for value in good faith and without notice of any adverse
claim within the meaning of the Uniform Commercial Code as in effect on the date
hereof in the State of New York, the several Underwriters will have acquired all
the rights of the Selling Stockholder to the Offered Securities purchased by
them from the Selling Stockholder free of any adverse claim;
(ii) To such counsel's knowledge, no consent, approval,
authorization or order of, or filing with, any governmental agency or body or
any court is required to be obtained or made by the Selling Stockholder in order
to consummate the transactions contemplated by the Power of Attorney, the
Custody Agreement or this Agreement in connection with the sale of the Offered
Securities by the Selling Stockholder, except such as may be required under
federal or state securities laws (with respect to which such counsel expresses
no opinion);
(iii) The execution, delivery and performance of this
Agreement and the Custody Agreement by or on behalf of the Selling Stockholder
and the execution and delivery of the Power of
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<PAGE> 19
Attorney by the Selling Stockholder and the consummation of the transactions
contemplated thereby will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or any court having
jurisdiction over the Selling Stockholder or any of its properties (except that
any rights to indemnity and contribution therein may be limited by federal and
state securities laws and public policy considerations) or the agreements known
to such counsel of the Selling Stockholder with respect to the Offered
Securities to be sold by the Selling Stockholder, except, in each case, for any
such breach, violation or default as could not reasonably be expected,
individually or in the aggregate, to materially and adversely affect the
performance of the Selling Stockholder thereunder;
(iv) The Standstill Agreements have been duly executed and
delivered by or on behalf of the Selling Stockholder and constitute valid and
legally binding obligations of the Selling Stockholder in accordance with their
terms (except that any rights to indemnity and contribution therein may be
limited by federal and state securities laws and public policy considerations),
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws relating to or affecting the enforcement of
creditors' rights or by general principles of equity;
(v) The Power of Attorney appointing Thomas S. Gallagher as
attorney-in-fact of the Selling Stockholder to the extent set forth therein with
regard to the transactions contemplated hereby and by the Registration
Statements, the Standstill Agreements and the Custody Agreement has been duly
executed and delivered by or on behalf of the Selling Stockholder and is a valid
and binding instrument of the Selling Stockholder (except that any rights to
indemnity and contribution therein may be limited by federal and state
securities laws and public policy considerations), and pursuant to such Power of
Attorney, the Selling Stockholder has authorized Thomas S. Gallagher to execute
and deliver on his behalf this Agreement, the Standstill Agreements, and any
other document necessary or desirable in connection with transactions
contemplated hereby and to deliver the Offered Securities to be sold by the
Selling Stockholder pursuant to this Agreement; and
(vi) This Agreement has been duly authorized, executed and
delivered by Thomas S. Gallagher on behalf of the Selling Stockholder pursuant
to the Power of Attorney.
(g) The Representatives shall have received an opinion, dated such
Closing Date of Thomas S. Gallagher, counsel for the Selling Stockholder, to the
effect that:
(i) The Main Standstill Agreements has been duly authorized,
executed and delivered by each party thereto other than the Company and
constitutes valid and legally binding obligations of each such party (except
that any rights to indemnity and contribution therein may be limited by federal
and state securities law and public policy considerations), enforceable in
accordance with its 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.
(ii) The CBC Standstill Agreements has been duly authorized,
executed and delivered by each party thereto other than the Company and
constitutes valid and legally binding obligations of each such party (except
that any rights to indemnity and contribution therein may be limited by federal
and state securities law and public policy considerations), enforceable in
accordance with its 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.
(h) The Representatives shall have received from Skadden, Arps,
Slate, Meagher & Flom LLP, 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 delivered on such Closing Date,
the
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<PAGE> 20
Registration Statements, the Prospectus and other related matters as the
Representatives may require, and the Selling Stockholder 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.
(i) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to their
knowledge after reasonable investigation, shall state that: the representations
and warranties of the Company in this Agreement are true and correct in all
material respects; the Company has complied in all material respects with all
agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date; no stop order suspending the
effectiveness of any Registration Statement has been issued and no proceedings
for that purpose have been instituted or are contemplated by the Commission; the
Additional Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b),
including payment of the applicable filing fee in accordance with Rule 111(a) or
(b) under the Act, prior to the time the Prospectus was printed and distributed
to any Underwriter; and, subsequent to the date of the most recent financial
statements incorporated by reference in the Prospectus, there has been no
material adverse change, nor any development or event that could reasonably be
expected to result in a 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.
(j) The Representatives shall have received a certificate, dated
such Closing Date, of the Selling Stockholder, in which the Selling Stockholder,
to the best of his knowledge after reasonable investigation, shall state that:
the representations and warranties of the Selling Stockholder in this Agreement
are true and correct in all material respects and the Selling Stockholder has
complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied under this Agreement at or
prior to such Closing Date.
(k) The Representatives shall have received a letter, dated such
Closing Date, of Price Waterhouse 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 three business days prior to such
Closing Date for the purposes of this subsection.
(l) The Offered Securities shall have been approved for listing on
the New York Stock Exchange, subject only to notice of issuance.
(m) The Standstill Agreements shall be in full force and effect as
of the Closing Date and shall not have been modified or amended in any respect;
the representations and warranties of each party to the Standstill Agreements
other than the Company shall be true and correct in all material respects as of
the Closing Date with the same force and effect as if made as of the Closing
Date; each such party shall have complied in all material respects with all
agreements and obligations to be performed by it under the Standstill
Agreements; and the Representatives shall have received a certificate of the
Selling Stockholder, dated as of the Closing Date, to the foregoing effect.
(n) The Custody Agreement, a copy of which was delivered to the
Underwriters on the date hereof by the Selling Stockholder, shall not have been
revoked, amended or supplemented other than with the written consent of CSFBC,
and such Custody Agreement shall be in full force and effect on the First
Closing Date.
(o) The Selling Stockholder and the Company will furnish the
Representatives with such conformed copies of such opinions, certificates,
letters and documents as the Representatives reasonably request. CSFBC may in
its sole discretion waive on behalf of the Underwriters compliance with any
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<PAGE> 21
conditions to the obligations of the Underwriters hereunder, whether in respect
of an Optional Closing Date or otherwise.
7. 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 any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, 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 (or actions in respect thereof) 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 conformity with written information furnished to
the Company by any Underwriter through the Representatives 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 subsection
(d) below.
(b) The Company will indemnify and hold harmless the Selling
Stockholder against any losses, claims, damages or liabilities, to which the
Selling Stockholder may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, 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 the Selling Stockholder
for any legal or other expenses reasonably incurred by such Selling Stockholder
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 (or actions in respect thereof) 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 conformity with written
information furnished to the Company by the Selling Stockholder specifically for
use therein, it being understood and agreed that the only such information
furnished by the Selling Stockholder consists of the information described as
such in subsection (c) below.
(c) The Selling Stockholder will indemnify and hold harmless the
Company and each Underwriter against any losses, claims, damages or liabilities,
to which the Company or such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission was made in conformity with information furnished to the
Company in writing by the Selling Stockholder specifically for use therein, and
will reimburse the Company and each Underwriter for any legal or other expenses
reasonably incurred by the Company or such Underwriter 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 on behalf of the Selling Stockholder consists of the
following information in the Prospectus furnished on behalf of the Selling
Stockholder: the two
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paragraphs appearing under the caption "Risk Factor-Significant Stockholder" and
the paragraph appearing under the caption "Selling Stockholder". Notwithstanding
the foregoing, in no event shall the Selling Stockholder be required to pay an
amount in indemnification under this subsection (c) in excess of the total price
at which the Securities sold by the Selling Stockholder hereunder was offered to
the public.
(d) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company and the Selling Stockholder against any losses,
claims, damages or liabilities to which the Company or such Selling Stockholder
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, 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 conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company and the
Selling Stockholder 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 following information in the Prospectus furnished on
behalf of each Underwriter: the last paragraph at the bottom of the cover page
concerning the terms of the offering by the Underwriters, the legend concerning
over-allotments and stabilizing on the inside front cover page, the concession
and reallowance figures appearing in the fourth paragraph under the caption
"Underwriting", and the last paragraph under the caption "Underwriting"
concerning over-allotments and stabilizing.
(e) 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 an indemnifying party
under subsection (a), (b), (c) or (d) 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), (b), (c) or (d) above. In case any
such action is brought against any indemnified party and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent 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. In no
event shall the indemnifying party be liable for fees and expenses of more than
one counsel (in addition to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. 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. An indemnifying party shall not be liable for any
settlement of any proceeding effected without its prior written consent;
provided, however, that if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees it shall be liable for any settlement
effected without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such
settlement at
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least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(f) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b), (c) or (d) 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),
(b), (c) or (d) above (i) in such proportion as is appropriate to reflect the
relative benefits received by (x) the Company, (y) the Selling Stockholder and
(z) the Underwriters from the offering of the 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 (x) the Company,
(y) the Selling Stockholder and (z) the Underwriters 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 (i) the Company, (ii) the Selling Stockholder and (iii) the
Underwriters shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
and the Selling Stockholder, respectively, 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, the Selling
Stockholder 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 (f) 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 (f).
Notwithstanding the provisions of this subsection (f), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the 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
(f) to contribute are several in proportion to their respective underwriting
obligations and not joint. Notwithstanding the foregoing, in no event shall the
Selling Stockholder be required to pay any amount in contribution under this
subsection (f) in excess of the total price at which the Securities sold by the
Selling Stockholder hereunder were offered to the public exceeds the amount the
Selling Stockholder has otherwise been required to pay pursuant to subsection
(c) above.
(g) The obligations of the Company and the Selling Stockholder under
this Section shall be in addition to any liability which the Company and the
Selling Stockholder may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter (as hereinafter
defined) 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 a Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company and the Selling Stockholder for
the purchase of such Offered Securities by other persons, including any of the
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Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Selling Stockholder for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholder, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). 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.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholder, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to 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, any Selling
Stockholder, 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 this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholder shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholder, and the Underwriters pursuant to Section 7 shall remain in effect;
if any Offered Securities have been purchased hereunder, the Company and the
Selling Stockholder shall remain responsible for the expenses to be paid or
reimbursed by them pursuant to Section 5 and the respective obligations of the
Company, the Selling Stockholder, and the Underwriters pursuant to Section 7
shall remain in effect, and the representations and warranties in Section 2 and
all other obligations under Section 5 shall also 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 this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (iii),
(iv) or (v) of Section 6(d), the Company and the Selling Stockholder will,
jointly and severally, 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.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department --
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at Terex Corporation, 500 Post Road
East, Westport, CT 06880,
Attention: Marvin B. Rosenberg, or, if sent to the Selling Stockholder, will be
mailed, delivered or telegraphed and confirmed to Randolph W. Lenz, c/o Equity
Merchant Banking, 2419 East Commercial Boulevard, Suite 304, Fort Lauderdale, FL
33308; provided, however, that any notice to an Underwriter pursuant to Section
7 will be mailed, delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives and
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligation hereunder.
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12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters.
13. Counterparts. This 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.
14. APPLICABLE LAW. THIS 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. THE COMPANY HEREBY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF THE FEDERAL AND STATE COURTS IN THE BOROUGH OF MANHATTAN IN THE
CITY OF NEW YORK IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholder, the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
/s/ Randolph W. Lenz
...........................................
Randolph W. Lenz
By: /s/ Thomas S. Gallagher,
Attorney-in-fact
Pursuant to Power of Attorney,
dated June 5, 1997
TEREX CORPORATION
/s/ Ronald M. DeFeo
By.........................................
President and Chief Executive Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON BROTHERS INC
FURMAN SELZ LLC
J.P. MORGAN SECURITIES INC.
Acting on behalf of themselves and as the Representatives of the several
Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
/s/ James T. Glerum, Jr.
By.....................................................
Managing Director
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SCHEDULE A
<TABLE>
<CAPTION>
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
- ----------- ---------------
<S> <C>
Credit Suisse First Boston Corporation 2,300,000
Salomon Brothers Inc 2,300,000
Furman Selz LLC 575,000
J.P. Morgan Securities Inc. 575,000
Commonwealth Associates, Inc. 250,000
Jefferies & Company, Inc. 250,000
Morgan Keegan & Company, Inc. 250,000
Nutmeg Securities, Ltd. 250,000
Schroder & Co. Inc. 250,000
=========
Total 7,000,000
</TABLE>
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SCHEDULE B
Ronald M. DeFeo
Marvin B. Rosenberg
G. Chris Andersen
William H. Fike
Bruce I. Raben
David A. Sachs
Adam E. Wolf
David J. Langevin
Joseph F. Apuzzo
Brian J. Henry
Steven E. Hooper
Fil Filipov
William S. Buchan
28
