3,800,000 Shares
XXXXXXXX CASTING CORPORATION
Common Stock
UNDERWRITING AGREEMENT
[ ], 1997
XXXXX XXXXXX INC
XXXXXX X. XXXX & COMPANY
As Representatives of the Several Underwriters
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxxxx Casting Corporation, a Kansas corporation (the "Company"),
proposes to issue and sell an aggregate of 2,029,024 shares of its common
stock, $0.01 par value per share, to the several Underwriters named in
Schedule I hereto (the "Underwriters") and Riverside Fund I, L.P., a Delaware
limited partnership (the "Selling Stockholder"), proposes to sell to the
several Underwriters an aggregate of 1,770,976 shares of common stock of the
Company. The Company and the Selling Stockholder are hereinafter sometimes
referred to as the "Sellers". The Company's common stock, $0.01 par value,
is hereinafter referred to as the "Common Stock" and the 2,029,024 shares of
Common Stock to be issued and sold to the Underwriters by the Company and the
1,770,976 shares of Common Stock to be sold to the Underwriters by the
Selling Stockholder are hereinafter referred to as the "Firm Shares". The
Company also proposes to sell to the Underwriters, upon the terms and
conditions set forth in Section 2 hereof, up to an additional 570,000 shares
(the "Additional Shares") of Common Stock. The Firm Shares and the
Additional Shares are hereinafter collectively referred to as the "Shares".
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The Company and the Selling Stockholder wish to confirm as follows
their respective agreements with you (the "Representatives") and the other
several Underwriters on whose behalf you are acting, in connection with the
several purchases of the Shares by the Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-2 under the Act
(the "registration statement"), including a prospectus subject to completion
relating to the Shares. The term "Registration Statement" as used in this
Agreement means the registration statement (including all financial schedules
and exhibits), as amended at the time it becomes effective, or, if the
registration statement became effective prior to the execution of this
Agreement, as supplemented or amended prior to the execution of this
Agreement. If it is contemplated, at the time this Agreement is executed,
that a post-effective amendment to the registration statement will be filed
and must be declared effective before the offering of the Shares may
commence, the term "Registration Statement" as used in this Agreement means
the registration statement as amended by said post-effective amendment. The
term "Prospectus" as used in this Agreement means the prospectus in the form
included in the Registration Statement, or, if the prospectus included in the
Registration Statement omits information in reliance on Rule 430A under the
Act and such information is included in a prospectus filed with the
Commission pursuant to Rule 424(b) under the Act, the term "Prospectus" as
used in this Agreement means the prospectus in the form included in the
Registration Statement as supplemented by the addition of the Rule 430A
information contained in the prospectus filed with the Commission pursuant to
Rule 424(b). The term "Prepricing Prospectus" as used in this Agreement
means the prospectus subject to completion in the form included in the
registration statement at the time of the initial filing of the registration
statement with the Commission, and as such prospectus shall have been amended
from time to time prior to the date of the Prospectus. Any reference in this
Agreement to the registration statement, the Registration Statement, any
Prepricing Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-2 under the Act. As used herein, the term "Incorporated Documents"
means the documents which are incorporated by reference into the registration
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statement, the Registration Statement, any Prepricing Prospectus, the
Prospectus, or any amendment or supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. Subject to such adjustments
as you may determine in order to avoid fractional shares, the Company hereby
agrees, subject to all the terms and conditions set forth herein, to issue
and sell to each Underwriter and, upon the basis of the representations,
warranties and agreements of the Company and the Selling Stockholder herein
contained and subject to all the terms and conditions set forth herein, each
Underwriter agrees, severally and not jointly, to purchase from the Company,
at a purchase price of $[ ] per Share (the "purchase price per share"),
the number of Firm Shares which bears the same proportion to the aggregate
number of Firm Shares to be issued and sold by the Company as the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I
hereto (or such number of Firm Shares increased as set forth in Section 12
hereof) bears to the aggregate number of Firm Shares to be sold by the
Company and the Selling Stockholder.
Subject to such adjustments as you may determine in order to avoid
fractional shares, the Selling Stockholder agrees, subject to all the terms
and conditions set forth herein, to sell to each Underwriter and, upon the
basis of the representations, warranties and agreements of the Company and
the Selling Stockholder herein contained and subject to all the terms and
conditions set forth herein, each Underwriter, severally and not jointly,
agrees to purchase from the Selling Stockholder at the purchase price per
share that number of Firm Shares which bears the same proportion to the
number of Firm Shares to be sold by the Selling Stockholder as the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I
hereto (or such number of Firm Shares increased as set forth in Section 12
hereof) bears to the aggregate number of Firm Shares to be sold by the
Company and the Selling Stockholder.
The Company also agrees, subject to all the terms and conditions set
forth herein, to sell to the Underwriters, and, upon the basis of the
representations, warranties and agreements of the Company and the Selling
Stockholder herein contained and subject to all the terms and conditions set
forth herein, the Underwriters shall have the right to purchase from the
Company, at the purchase price per share, pursuant to an option (the
"over-allotment option") which may be exercised at any time and from time to
time prior to 9:00 P.M., New York City time, on the 30th day after the date
of the Prospectus
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(or, if such 30th day shall be a Saturday or Sunday or a holiday, on the next
business day thereafter when the New York Stock Exchange is open for
trading), up to an aggregate of 570,000 Additional Shares from the Company.
Additional Shares may be purchased only for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares.
Upon any exercise of the over-allotment option, each Underwriter, severally
and not jointly, agrees to purchase from the Company the number of Additional
Shares (subject to such adjustments as you may determine in order to avoid
fractional shares) which bears the same proportion to the number of
Additional Shares to be sold by the Company as the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto (or such
number of Firm Shares increased as set forth in Section 12 hereof) bears to
the aggregate number of Firm Shares to be sold by the Company and the Selling
Stockholder.
3. TERMS OF PUBLIC OFFERING. The Sellers have been advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and
initially to offer the Shares upon the terms set forth in the Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the
Underwriters of and payment for the Firm Shares shall be made at the office
of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00
A.M., New York City time, on [ ], 1997 (the "Closing Date"). The place
of closing for the Firm Shares and the Closing Date may be varied by
agreement among you, the Company and the Selling Stockholder.
Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at the
aforementioned office of Xxxxx Xxxxxx Inc. at such time on such date (the
"Option Closing Date"), which may be the same as the Closing Date but shall
in no event be earlier than the Closing Date nor earlier than two nor later
than ten business days after the giving of the notice hereinafter referred
to, as shall be specified in a written notice from you on behalf of the
Underwriters to the Company of the Underwriters' determination to purchase a
number, specified in such notice, of Additional Shares. The place of closing
for any Additional Shares and the Option Closing Date for such Shares may be
varied by agreement among you and the Company.
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Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such
denominations as you shall request prior to 9:30 A.M., New York City time, on
the second business day preceding the Closing Date or any Option Closing
Date, as the case may be. Such certificates shall be made available to you
in New York City for inspection and packaging not later than 9:30 A.M., New
York City time, on the business day next preceding the Closing Date or the
Option Closing Date, as the case may be. The certificates evidencing the
Firm Shares and any Additional Shares to be purchased hereunder shall be
delivered to you on the Closing Date or the Option Closing Date, as the case
may be, against payment of the purchase price therefor in immediately
available funds.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Company will endeavor to cause the Registration Statement or
such post-effective amendment to become effective as soon as reasonably
practicable and will advise you promptly and, if requested by you, will
confirm such advice in writing, when it receives notice that the
Registration Statement or such post-effective amendment has become
effective.
(b) The Company will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of its receipt of notice of any
request by the Commission for amendment of or a supplement to the
Registration Statement, any Prepricing Prospectus or the Prospectus or
for additional information; (ii) of its receipt of notice of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the
Shares for offering or sale in any jurisdiction or the initiation of any
proceeding for such purpose; and (iii) within the period of time referred
to in paragraph (f) below, of its becoming aware of any change in the
Company's condition (financial or other), business, prospects,
properties, net worth or results of operations, or of the happening of
any event, which makes any statement of a material fact made in the
Registration Statement or the Prospectus (as then amended or
supplemented) untrue or which requires the mak-
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ing of any additions to or changes in the Registration Statement or the
Prospectus (as then amended or supplemented) in order to state a material
fact required by the Act or the regulations thereunder to be stated therein
or necessary in order to make the statements therein not misleading, or of
the necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge, (i) such number
of signed copies of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements
and all exhibits to the registration statement as you may reasonably
request, (ii) such number of conformed copies of the registration statement
as originally filed and of each amendment thereto, but without exhibits, as
you may request, (iii) such number of copies of the Incorporated Documents,
without exhibits, as you may request, and (iv) three copies of the exhibits
to the Incorporated Documents.
(d) The Company will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus of which
you shall not previously have been advised or to which you shall object
after being so advised or (ii) so long as, in the opinion of counsel for
the Underwriters, a Prospectus is required to be delivered in connection
with sales by any Underwriter or dealer, file any information, documents or
reports pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") without delivering a copy of such information, documents or
reports to you, as representatives of the Underwriters, prior to or
concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you
have requested, copies of each form of the Prepricing Prospectus. The
Company consents to the use, in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by dealers, prior to the
date of the
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Prospectus, of each Prepricing Prospectus so furnished by the
Company.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the opinion
of counsel for the Underwriters a prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer, the
Company will expeditiously deliver to each Underwriter and each dealer,
without charge, as many copies of the Prospectus (and of any amendment or
supplement thereto) as you may request. The Company consents to the use
of the Prospectus (and of any amendment or supplement thereto) in
accordance with the provisions of the Act and with the securities or Blue
Sky laws of the jurisdictions in which the Shares are offered by the
several Underwriters and by all dealers to whom Shares may be sold, both
in connection with the offering and sale of the Shares and for such
period of time thereafter as the Prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer. If
during such period of time any event shall occur that in the judgment of
the Company or in the opinion of counsel for the Underwriters is required
to be set forth in the Prospectus (as then amended or supplemented) or
should be set forth therein in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if
it is necessary to supplement or amend the Prospectus to comply with the
Act or any other law, the Company will forthwith prepare and, subject to
the provisions of paragraph (d) above, file with the Commission an
appropriate supplement or amendment thereto, and will expeditiously
furnish to the Underwriters and dealers a reasonable number of copies
thereof. In the event that the Company and you, as Representatives of
the several Underwriters, agree that the Prospectus should be amended or
supplemented, the Company, if requested by you, will promptly issue a
press release announcing or disclosing the matters to be covered by the
proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for the
Underwriters in connection with the notice of the offering and sale of the
Shares by the several Underwriters and by dealers under the securities or
Blue Sky laws of such jurisdictions as you may designate; provided that in
no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which
would subject it to
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service of process in suits, other than those arising
out of the offering or sale of the Shares, in any jurisdiction where it is
not now so subject.
(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter, as
soon as practicable after the end of such period, which consolidated
earnings statement shall satisfy the provisions of Section ll(a) of the
Act.
(i) During the period of five years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the
Company mailed to stockholders or filed with the Commission, and (ii) from
time to time such other information concerning the Company as you may
request.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 12 hereof or by notice given by you terminating
this Agreement pursuant to Section 12 or Section 13 hereof) or if this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of the Company or the Selling Stockholder to comply
with the terms or fulfill any of the conditions of this Agreement, the
Company agrees to reimburse the Representatives for all out-of-pocket
expenses (including fees and expenses of counsel for the Underwriters)
incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the
Shares to be sold by it hereunder substantially in accordance with the
description set forth in the Prospectus.
(l) If Rule 430A of the Act is employed, the Company will timely file
the Prospectus pursuant to Rule 424(b) under the Act and will advise you of
the time and manner of such filing.
(m) Except as provided in this Agreement, the Company will not sell,
contract to sell or otherwise dispose of any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or grant
any
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options or warrants to purchase Common Stock, for a period of 90 days after
the date of the Prospectus, without the prior written consent of Xxxxx
Xxxxxx Inc.; PROVIDED that the Company shall be permitted to (i) grant
options pursuant to the Xxxxxxxx Casting Corporation 1993 Incentive Stock
Plan and the Xxxxxxxx Casting Corporation Non-Employee Director Option
Plan and to issue Common Stock upon the exercise of any option granted
under either such plan, (ii) issue Common Stock pursuant to the 1993
Xxxxxxxx Casting Corporation Employee Stock Purchase Plan and (iii) issue
Common Stock pursuant to the Employee Stock Incentive Agreements to which
the Company is a party on the date of this Agreement.
(n) The Company has furnished or will furnish to you "lock-up"
letters, in form and substance satisfactory to you, signed by each of the
current officers and directors of the Company set forth on Schedule II
hereto.
(o) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Company has not taken, nor will it take,
directly or indirectly, any action designed to or that might reasonably
be expected to cause or result in stabilization or manipulation of the
price of the Common Stock to facilitate the sale or resale of the Shares.
(p) The Company will use its best efforts to have the shares of
Common Stock which it agrees to sell under this Agreement listed, subject
to notice of issuance, on the New York Stock Exchange on or before the
Closing Date.
6. AGREEMENTS OF THE SELLING STOCKHOLDER. The Selling Stockholder
agrees with the several Underwriters as follows:
(a) The Selling Stockholder will cooperate to the extent necessary
to cause the registration statement or any post-effective amendment
thereto to become effective at the earliest possible time.
(b) The Selling Stockholder will pay all Federal and other taxes, if
any on the transfer or sale of the Shares being sold by the Selling
Stockholder to the Underwriters.
(c) The Selling Stockholder will do or perform all things required to
be done or performed by the Selling Stockholder prior to the Closing Date
to satisfy all con-
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ditions precedent to the delivery of the Shares pursuant
to this Agreement.
(d) Except as stated in this Agreement and in the Prepricing
Prospectus and the Prospectus, the Selling Stockholder will not take,
directly or indirectly, any action designed to or that might reasonably
be expected to cause or result in stabilization or manipulation of the
price of the Common Stock to facilitate the sale or resale of the Shares.
(e) The Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, within the period
of time referred to in Section 5(f) hereof, of any change in the
Company's condition (financial or other), business, prospects,
properties, net worth or results of operations or of any change in
information relating to the Selling Stockholder or the Company or any new
information relating to the Company or relating to any matter stated in
the Prospectus or any amendment or supplement thereto which comes to the
attention of the Selling Stockholder that suggests that any statement
made in the Registration Statement or the Prospectus (as then amended or
supplemented, if amended or supplemented) is or may be untrue in any
material respect or that the Registration Statement or Prospectus (as
then amended or supplemented, if amended or supplemented) omits or may
omit to state a material fact or a fact necessary to be stated therein in
order to make the statements therein not misleading in any material
respect, or of the necessity to amend or supplement the Prospectus (as
then amended or supplemented, if amended or supplemented) in order to
comply with the Act or any other law.
7. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter and the Selling Stockholder that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement
thereto, or filed pursuant to Rule 424 under the Act, complied when so
filed in all material respects with the provisions of the Act except that
this representation and warranty does not apply to statements in or
omissions from such Prepricing Prospectus (or for any amendment or
supplement thereto) made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by or
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on behalf of any Underwriter through you expressly for use
therein. The Commission has not issued any order preventing or suspending
the use of any Prepricing Prospectus.
(b) The Company meets the requirements for the use of Form S-2 under
the Act. The registration statement in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective and the prospectus
and any supplement or amendment thereto when filed with the Commission
under Rule 424(b) under the Act, complied or will comply in all material
respects with the provisions of the Act and did not or will not at any such
times contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they made) not misleading, except that this
representation and warranty does not apply to statements in or omissions
from the registration statement or the prospectus made in reliance upon and
in conformity with information relating to any Underwriter furnished to the
Company in writing by or on behalf of any Underwriter through you expressly
for use therein.
(c) The Incorporated Documents, when they were filed (or, if any
amendment with respect to any such document was filed, when such amendment
was filed), complied in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder, and did not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.
(d) All the outstanding shares of Common Stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable
and are free of any preemptive or similar rights; the Shares to be issued
and sold by the Company have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with
the terms hereof, will be validly issued, fully paid and nonassessable and
free of any preemptive or similar rights; and the capital stock of the
Company conforms to the description thereof in the Registration Statement
and the Prospectus.
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(e) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Kansas with full
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement
and the Prospectus, and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify does not have a material adverse effect on the condition (financial
or other), business, properties, net worth or results of operations of the
Company and the Subsidiaries (as hereinafter defined) taken as a whole.
(f) All the Company's subsidiaries (collectively, the "Subsidiaries")
are set forth on Schedule III hereto. Each Subsidiary is a corporation
duly organized, validly existing and in good standing in the jurisdiction
of its incorporation, with full corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure so to register or qualify does not have a material adverse effect
on the condition (financial or other), business, properties, net worth or
results of operations of such Subsidiary; all the outstanding shares of
capital stock of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and, except as noted on Schedule III hereto,
nonassessable, and, except as set forth on the Schedule III hereto, are
owned by the Company directly, or indirectly through one of the other
Subsidiaries, free and clear of any lien, adverse claim, security interest,
equity or other encumbrance.
(g) Except as described in the Registration Statement, Prepricing
Prospectus and the Prospectus, there are no legal or governmental
proceedings pending or, to the knowledge of the Company, threatened,
against the Company or any of the Subsidiaries, or to which the Company or
any of the Subsidiaries, or to which any of their respective properties is
subject, that are required under the Act or the Exchange Act to be
described in the Registration Statement or the Prospectus, and there are no
agreements,
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contracts, indentures, leases or other instruments that are
required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement or any Incorporated
Document that are not described or filed as required by the Act or the
Exchange Act.
(h) Neither the Company nor any of the Subsidiaries is in violation
of its certificate or articles of incorporation or by-laws, or other
organizational documents, or of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries or of any decree of any court or governmental agency or body
having jurisdiction over the Company or any of the Subsidiaries, or in
default in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of
indebtedness or in any material agreement, indenture, lease or other
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound,
except for such violations and defaults which, individually and in the
aggregate, could not reasonably be expected to have a material adverse
effect on the condition (financial or other), business, properties, net
worth or results of operations of the Company and the Subsidiaries, taken
as a whole.
(i) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement by the Company nor the
consummation by the Company of the transactions contemplated hereby (i)
requires any consent, approval, authorization or other order of or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official (except such as may
be required for the registration of the Shares under the Act and the
Exchange Act and compliance with the securities or Blue Sky laws of various
jurisdictions, all of which have been or will be effected in accordance
with this Agreement) or conflicts or will conflict with or constitutes or
will constitute a breach of, or a default under, the certificate or
articles of incorporation or bylaws, or other organizational documents, of
the Company or any of the Subsidiaries or (ii) conflicts or will conflict
with or constitutes or will constitute a breach of, or a default under, any
agreement, indenture, lease or other instrument to which the Company or any
of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, or violates
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or will violate any statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Company or any of the
Subsidiaries or any of their respective properties, or will result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Subsidiaries pursuant to
the terms of any agreement or instrument to which any of them is a party
or by which any of them may be bound or to which any of the property or
assets of any of them is subject, except for such conflicts, breaches,
defaults, violations and liens, charges and encumbrances which,
individually and in the aggregate, could not reasonably be expected to
have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company
and the Subsidiaries, taken as a whole.
(j) The accountants, Deloitte & Touche LLP, who have certified or
shall certify the financial statements included or incorporated by
reference in the Registration Statement and the Prospectus (or any
amendment or supplement thereto) are independent public accountants as
required by the Act.
(k) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration Statement
and the Prospectus (and any amendment or supplement thereto), present
fairly the consolidated financial position, results of operations and
changes in financial position of the Company and the Subsidiaries on the
basis stated in the Registration Statement at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and
statistical information and data included or incorporated by reference in
the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are accurately presented and prepared on a basis
consistent with such financial statements and the books and records of the
Company and the Subsidiaries.
(l) The execution and delivery of, and the performance by the Company
of its obligations under, this Agreement have been duly and validly
authorized by the Company,
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and this Agreement has been duly executed and
delivered by the Company.
(m) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto),
neither the Company nor any of the Subsidiaries has incurred any liability
or obligation, direct or contingent, or entered into any transaction, not
in the ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole, and there has not been any change in the
capital stock, or material increase in the short-term debt or long-term
debt, of the Company or any of the Subsidiaries, or any material adverse
change, or any development involving or which may reasonably be expected to
involve, a prospective material adverse change, in the condition (financial
or other), business, net worth or results of operations of the Company and
the Subsidiaries taken as a whole.
(n) Each of the Company and the Subsidiaries has good and marketable
title to all property (real and personal) described in the Prospectus as
being owned by it, free and clear of all liens, claims, security interests
or other encumbrances except such as are described in the Registration
Statement and the Prospectus or in a document filed as an exhibit to the
Registration Statement and all the property described in the Prospectus as
being held under lease by each of the Company and the Subsidiaries is held
by it under valid, subsisting and enforceable leases.
(o) The Company has not distributed and, prior to the later to occur
of (i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prepricing Prospectus, the Prospectus or other materials, if any, permitted
by the Act.
(p) The Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own its respective properties
and to conduct its business in the manner described in the Prospectus,
subject to such qualifications as may be set forth in the Prospectus and
except where the failure to have any such
-16-
permit could not reasonably be expected to have a material adverse effect
on the condition (financial or other), business, properties, net worth or
results of operations of the Company and the Subsidiaries, taken as a
whole; the Company and each of the Subsidiaries has fulfilled and
performed all its material obligations with respect to such permits,
except where the failure to so fulfill or perform could not reasonably be
expected to have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of the
Company and the Subsidiaries, taken as a whole; and no event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other impairment of the rights of
the holder of any such permit, subject in each case to such qualification
as may be set forth in the Prospectus and except where any such
revocation, termination or impairment could not reasonably be expected to
have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company
and the Subsidiaries, taken as a whole; and, except as described in the
Prospectus, none of such permits contains any restriction that could
reasonably be expected to have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole.
(q) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(r) To the Company's knowledge, neither the Company nor any of its
Subsidiaries nor any employee or agent of the Company or any Subsidiary has
made any payment of funds of the Company or any Subsidiary or received or
retained any funds in violation of any law, rule or regula-
-17-
tion, which payment, receipt or retention of funds is of a character
required to be disclosed in the Prospectus.
(s) The Company and each of the Subsidiaries have filed all tax
returns required to be filed, which returns are complete and correct, and
neither the Company nor any Subsidiary is in default in the payment of any
taxes which were payable pursuant to said returns or any assessments with
respect thereto, except where the failure to have filed such returns, the
failure of such returns to be complete and correct and the failure to pay
such taxes or assessments, individually and in the aggregate, could not
reasonably be expected to have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole.
(t) No holder of any security of the Company (other than the Selling
Stockholder) has any right (other than holders who have agreed in writing
to waive such rights) to require registration of shares of Common Stock or
any other security of the Company because of the filing of the registration
statement or consummation of the transactions contemplated by this
Agreement.
(u) The Company is not now, and after sale of the Shares to be sold
by it hereunder and application of the net proceeds from such sale as
described in the Prospectus under the caption "Use of Proceeds" will not
be, an "investment company" within the meaning of the Investment Company
Act of 1940, as amended.
(v) The Company has complied with all provisions of Florida Statutes,
517.075, relating to issuers doing business with Cuba.
8. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDER. The
Selling Stockholder represents and warrants to each Underwriter that:
(a) The Selling Stockholder now has, and on the Closing Date will
have, valid and marketable title to the Shares to be sold by such Selling
Stockholder, free and clear of any lien, claim, security interest or other
encumbrance, including, without limitation, any restriction on transfer.
-18-
(b) The Selling Stockholder now has, and on the Closing Date will have,
full legal right, power and authorization, and any approval required by
law, to sell, assign transfer and deliver such Shares in the manner
provided in this Agreement, and upon delivery of and payment for such
Shares hereunder, the several Underwriters will acquire valid and
marketable title to such Shares free and clear of any lien, claim, security
interest, or other encumbrance (assuming the Underwriters are without
notice of any adverse claim, as defined in the Uniform Commercial Code and
are otherwise bona fide purchasers for purposes of the Uniform Commercial
Code).
(c) This Agreement has been duly authorized, executed and delivered
by the Selling Stockholder and is the valid and binding agreement of the
Selling Stockholder enforceable against the Selling Stockholder in
accordance with its terms.
(d) Neither the execution and delivery of this Agreement by the
Selling Stockholder nor the consummation of the transactions herein
contemplated by the Selling Stockholder requires any consent, approval,
authorization or order of, or filing or registration with, any court,
regulatory body, administrative agency or other governmental body, agency
or official (except such as may be required under the Act or such as may be
required under state securities or Blue Sky laws governing the purchase and
distribution of the Shares) or conflicts or will conflict with or
constitutes or will constitute a breach of, or default under, or violates
or will violate, any agreement, indenture or other instrument to which the
Selling Stockholder is a party or by which the Selling Stockholder is or
may be bound or to which any of the Selling Stockholder's property or
assets is subject, or any statute, law, rule, regulation, ruling, judgment,
injunction, order or decree applicable to the Selling Stockholder or to any
property or assets of the Selling Stockholder.
(e) The Registration Statement and the Prospectus, insofar as they
relate to the Selling Stockholder, do not and will not contain an 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.
(f) The Selling Stockholder does not have any knowledge or any reason
to believe that the Registration State-
-19-
ment or the Prospectus (or any amendment or supplement thereto) contains
any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(g) The Selling Stockholder has not taken, directly or indirectly,
any action designed to or that might reasonably be expected to cause or
result in stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Shares.
9. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each of you, each other Underwriter, each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act and the Selling Stockholder and each person,
if any, who controls the Selling Stockholder within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus or in
the Registration Statement or the Prospectus or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information (x) in the case of the Underwriters and their controlling persons,
relating to such Underwriter furnished in writing to the Company by or on behalf
of any Underwriter through you expressly for use in connection therewith or
(y) in the case of the Selling Stockholder, relating to the Selling Stockholder
furnished in writing to the Company by or on behalf of the Selling Stockholder
for use in connection therewith; provided, however, that the indemnification
contained in this paragraph (a) with respect to any Prepricing Prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) on account of any such loss, claim, damage,
liability or expense arising from the sale of the Shares by such Underwriter to
any person if a copy of the Prospectus shall not have been delivered or sent to
such person within the time required by the Act and the regulations thereunder,
and the untrue state-
-20-
ment or alleged untrue statement or omission or alleged omission of a
material fact contained in such Prepricing Prospectus was corrected in the
Prospectus, provided that the Company has delivered the Prospectus to the
several Underwriters in requisite quantity on a timely basis to permit such
delivery or sending. The foregoing indemnity agreement shall be in addition
to any liability which the Company may otherwise have.
(b) The Selling Stockholder agrees to indemnify and hold harmless
each Underwriter and person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Prepricing Prospectus or in the Registration Statement or the Prospectus or in
any amendment or supplement thereto or arising out of or based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or expenses arise out of or
are based upon any untrue statement or omission or alleged untrue statement or
omission which has been made therein or omitted therefrom in reliance upon and
in conformity with the information relating to such Underwriter furnished in
writing to the Company or by or on behalf of any Underwriter through you
expressly for the use in connection therewith; provided, however, that the
indemnification contained in this paragraph (b) with respect to any Prepricing
Prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) on account of any such loss, claim,
damage, liability or expense arising from the sale of the Shares by such
Underwriter to any person if a copy of the Prospectus shall not have been
delivered or sent to such person within the time required by the Act and the
regulations thereunder, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such Prepricing
Prospectus was corrected in the Prospectus, provided that the Company has
delivered the Prospectus to the several Underwriters in requisite quantity on a
timely basis to permit such delivery or sending. Notwithstanding anything to
the contrary contained in this paragraph (b), each Underwriter and each person
controlling such Underwriter agrees not to assert its rights to indemnity under
this paragraph (b) against the Selling Stockholder until (i) such Underwriter or
controlling person has requested indemnification and reimbursement from the
Company for such losses, claims, damages, liabilities or expenses and
-21-
(ii) the Company does not within 60 days of such request (A) agree to
indemnify such Underwriter or controlling person and (B) reimburse in full
such Underwriter or controlling person for any such losses, claims, damages,
liabilities or expenses incurred. In the event that litigation between the
parties with respect to this Section 9 results in joint or joint and several
judgment against the Company and the Selling Stockholder, each Underwriter
and each controlling person of an Underwriter agrees that it will not attempt
to enforce such judgment against the Selling Stockholder unless and until any
part of such judgment shall remain unsatisfied by the Company for more than
60 days. The liability of the Selling Stockholder under this paragraph (b)
shall not exceed an amount equal to the net proceeds received by the Selling
Stockholder from the sale hereunder of the Shares sold by the Selling
Stockholder to the Underwriters hereunder. The foregoing indemnity agreement
shall be in addition to any liability which the Selling Stockholder may
otherwise have.
(c) The Selling Stockholder agrees to indemnify and hold harmless,
the Company, its directors, its officers who sign the Registration Statement,
and any person who controls the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus or in
the Registration Statement or the Prospectus or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only with respect to information
relating to the Selling Stockholder furnished in writing by or on behalf of such
Selling Stockholder expressly for use in the Registration Statement, the
Prospectus, or any Prepricing Prospectus, or any amendment or supplement
thereto. The liability of the Selling Stockholder under this paragraph (c)
shall not exceed an amount equal to the net proceeds received by the Selling
Stockholder from the sale hereunder of the Shares sold by the Selling
Stockholder to the Underwriters hereunder. The foregoing indemnity agreement
shall be in addition to any liability which the Selling Stockholder may
otherwise have.
(d) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, the Selling Stockholder, and any person who controls the
Company or
-22-
the Selling Stockholder within the meaning of Section 15 of the Act
or Section 20(a) of the Exchange Act, insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Prepricing
Prospectus or in the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or arise out of or are based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only with respect to information relating to such Underwriter
furnished in writing by or on behalf of such Underwriter through you expressly
for use in the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto. The foregoing indemnity
agreement shall be in addition to any liability which any Underwriter may
otherwise have.
(e) If any action, suit or proceeding shall be brought against any
person (an "Indemnified Person") in respect of which indemnity may be sought
against the Company, the Selling Stockholder or an Underwriter (an "Indemnifying
Party"), such Indemnified Person shall promptly notify in writing the
Indemnifying Parties against whom indemnification is being sought, and such
Indemnifying Parties shall assume the defense thereof, including the employment
of counsel and payment of all fees and expenses. No indemnification under
paragraph (a), (b), (c) or (d) above shall be available to any party who shall
so fail to give such notice if the party to whom such notice was not given was
unaware of the action to which the notice would have related and was materially
prejudiced by the failure to give notice. Such Indemnified Person shall have
the right to employ separate counsel in any such action, suit or proceeding and
to participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Parties have agreed in writing to pay such fees and expenses, (ii) the
Indemnifying Parties have failed to assume the defense and employ counsel, or
(iii) the named parties to any such action, suit or proceeding (including any
impleaded parties) include both such Indemnified Person and an Indemnifying
Party and such Indemnified Person shall have been advised by its counsel that
representation of such Indemnified Person and such Indemnifying Party by the
same counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them (in which
case the Indemnifying Parties shall not have the right to assume the de-
-23-
fense of such action, suit or proceeding on behalf of such Indemnified
Person). It is understood, however, that the Indemnifying Parties shall, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all Indemnified
Persons not having actual or potential differing interests with you or among
themselves, which firm shall be designated in writing (i) by Xxxxx Xxxxxx
Inc., in the case of the Underwriters and their controlling persons, (ii) by
the Company in the case of the Company, its directors, its officers who
signed the Registration Statement and its controlling persons and (iii) the
Selling Stockholder in the case of the Selling Stockholder and its
controlling persons and, in each case, that all such fees and expenses shall
be reimbursed as they are incurred. The Indemnifying Parties shall not be
liable for any settlement of any such action, suit or proceeding effected
without their written consent, but if settled with such written consent, or
if there be a final judgment for the plaintiff in any such action, suit or
proceeding, the Indemnifying Parties agree to indemnify and hold harmless any
Indemnified Persons, to the extent provided in the preceding paragraphs, from
and against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. The Company will not without the prior written
consent of the Selling Stockholder or controlling person of the Selling
Stockholder, settle or compromise or consent to the entry of judgment in any
pending or threatened claim, action, suit or proceeding to which the Selling
Stockholder or such controlling person is a party and in respect of which
indemnification may be sought against the Selling Stockholder hereunder.
(f) If the indemnification provided for in this Section 9 is
unavailable to an Indemnified Person under paragraph (a), (b), (c) or (d) hereof
in respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an Indemnifying Party, in lieu of indemnifying such Indemnified
Person, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages, liabilities or expenses (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company, the Selling Stockholder and the Underwriters from the offering
of the Shares, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of
-24-
the Company, the Selling Stockholder and the Underwriters in connection with
the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand, and the Underwriters, on the other, shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the underwriting discounts and
commissions received by the Underwriters from the offering of the Shares sold
by the Company hereunder, in each case as set forth in the table on the cover
page of the Prospectus; provided that, in the event that the Underwriters
shall have purchased any Additional Shares hereunder, any determination
pursuant to this sentence of the relative benefits received by the Company or
the Underwriters from the offering of the Shares shall include the net
proceeds (before deducting expenses) received by the Company, and the
underwriting discounts and commissions received by the Underwriters, from the
sale of such Additional Shares, in each case computed on the basis of the
respective amounts set forth in the notes to the table on the cover page of
the Prospectus. The relative benefits received by the Selling Stockholder,
on the one hand, and the Underwriters, on the other, shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Selling Stockholder bear to the
underwriting discounts and commissions received by the Underwriters from the
offering of the Shares sold by the Selling Stockholder hereunder, in each
case as set forth in the table on the cover page of the Prospectus. The
relative benefits received by the Selling Stockholder, on the one hand, and the
Selling Stockholder, on the other, shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total net proceeds from the offering
(before deducting expenses) received by the Company, in each case as set forth
on the cover page of the Prospectus; provided that, in the event the
Underwriters shall have purchased any Additional Shares hereunder, any
determination pursuant to this sentence of the relative benefits received by
the Company from the offering of the Shares shall include the net proceeds
(before deducting expenses) received by the Company from the sale of such
Additional Shares, as computed on the basis of the amount set forth in the
notes to the table on the cover page of the Prospectus. The relative fault of
the Company, the Selling Stockholder and the Underwriters shall be determined
by reference to 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
-25-
Stockholder or by the Underwriters, respectively, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission as well as any other equitable considerations
appropriate under the circumstances.
(g) The Company, the Selling Stockholder and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
9 were determined by a pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (f) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (f) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price of the Shares underwritten by it and distributed 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. Notwithstanding anything to the contrary
contained in this Section 9, each Underwriter and each person controlling such
Underwriter agrees not to assert its rights to contribution under paragraph (f)
above against the Selling Stockholder until (i) such Underwriter or controlling
person has requested contribution from the Company for such losses, claims,
damages, liabilities or expenses and (ii) the Company does not within 60 days of
such request (A) agree to so indemnify such Underwriter or controlling person
and (B) reimburse in full such Underwriter or controlling person for any such
losses, claims, damages, liabilities or expenses incurred. Notwithstanding
anything to the contrary contained in this Section 9, the Selling Stockholder
shall not be required to contribute any amount in excess of an amount equal to
the net proceeds received by the Selling Stockholder from the sale hereunder of
the Shares sold by the Selling Stockholder to the Underwriters hereunder. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 9 are several in proportion to the
respective numbers of Firm Shares set forth opposite their names in Schedule I
hereto (or
-26-
such numbers of Firm Shares increased as set forth in Section 12 hereof) and
not joint.
(h) No Indemnifying Party shall, without the prior written consent
of the Indemnified Person, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any Indemnified Person is or
could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the
subject matter of such action, suit or proceeding.
(i) Any losses, claims, damages, liabilities or expenses for which
an Indemnified Person is entitled to indemnification or contribution under
this Section 9 shall be paid by the Indemnifying Party to the Indemnified
Person as such losses, claims, damages, liabilities or expenses are incurred.
The indemnity and contribution agreements contained in this Section 9 and
the representations and warranties of the Company and the Selling Stockholder
set forth in this Agreement shall remain operative and in full force and
effect, regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, the Company, its
directors or officers or the Selling Stockholder, its partners or officers,
or any person controlling the Company or the Selling Stockholder, (ii)
acceptance of any Shares and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to any Underwriter or any person
controlling any Underwriter, or to the Company, its directors or officers, or
any person controlling the Company, or the Selling Stockholder, its partners
or officers or any person controlling the Selling Stockholder, shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 9.
10. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the registration statement or such post-effective amendment shall
have become effective not later than 5:30 P.M., New York City time, on the
date hereof, or at such later date and time as shall be consented to in
writing by you,
-27-
and all filings, if any, required by Rules 424 and 430A
under the Act shall have been timely made; no stop order suspending the
effectiveness of the registration statement shall have been issued and no
proceeding for that purpose shall have been instituted or, to the knowledge
of the Company or any Underwriter, threatened by the Commission, and any
request of the Commission for additional information (to be included in the
registration statement or the prospectus or otherwise) shall have been
complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the Company or
the Subsidiaries not contemplated by the Prospectus, which in your opinion,
as Representatives of the several Underwriters, would materially adversely
affect the market for the Shares, or (ii) any event or development relating
to or involving the Company or any officer or director of the Company or
the Selling Stockholder which makes any statement made in the Prospectus
untrue or which, in the opinion of the Company and its counsel or the
Underwriters and their counsel, requires the making of any addition to or
change in the Prospectus in order to state a material fact required by the
Act or any other law to be stated therein or necessary in order to make the
statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion, as
Representatives of the several Underwriters, materially adversely affect
the market for the Shares.
(c) You shall have received on the Closing Date, an opinion of
Xxxxxxxxx Xxxxxxx Xxxxxxx Weary & Xxxxxxxx LLP, counsel for the Company,
dated the Closing Date and addressed to you, as Representatives of the
several Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Kansas with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus (and any amendment or
supplement thereto), and is duly qualified to conduct its business
and is in good standing
-28-
in each jurisdiction set forth on a schedule to such opinion (which
opinion shall be accompanied by a certificate of an officer of the
Company stating that such jurisdictions are the only jurisdictions
where the nature of the Company's properties or the conduct of its
business requires such registration or qualification, except where
the failure so to register or qualify does not have a material
adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and
the Subsidiaries taken as a whole);
(ii) Each of the Subsidiaries is a corporation duly organized
and validly existing in good standing under the laws of the
jurisdiction of its organization, with full corporate power and
authority to own, lease, and operate its properties and to conduct
its business as described in the Registration Statement and the
Prospectus (and any amendment or supplement thereto); and all the
outstanding shares of capital stock of each of the Subsidiaries have
been duly authorized and validly issued, are fully paid and, except
as noted on Schedule III hereto, nonassessable;
(iii) The outstanding capital stock of the Company is as set
forth under the caption "Capitalization" in the Prospectus and the
authorized capital stock of the Company conforms in all material
respects as to legal matters to the description thereof contained in
the Prospectus under the caption "Description of Capital Stock";
(iv) All the shares of capital stock of the Company
outstanding prior to the issuance of the Shares to be issued and
sold by the Company hereunder, have been duly authorized and validly
issued, and are fully paid and nonassessable;
(v) The Shares to be issued and sold to the Underwriters by
the Company hereunder have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and
nonassessable and free of any preemptive rights arising under any
statute or any contract or agreement that is an exhibit to the
Registration
-29-
Statement to which the Company is a party or by which
it is bound;
(vi) The form of certificates for the Shares conforms to the
requirements of the Kansas General Corporation Code;
(vii) The Registration Statement and all post-effective
amendments, if any, have become effective under the Act and, to the
best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose are pending before or contemplated by
the Commission; and any required filing of the Prospectus pursuant
to Rule 424(b) has been made in accordance with Rule 424(b);
(viii) The Company has corporate power and authority to enter
into this Agreement and to issue, sell and deliver the Shares to be
sold by it to the Underwriters as provided herein, and this
Agreement has been duly authorized, executed and delivered by the
Company;
(ix) Neither the offer, sale or delivery of the Shares, the
execution, delivery or performance of this Agreement, compliance by
the Company with the provisions hereof nor consummation by the
Company of the transactions contemplated hereby violates or
constitutes or will constitute a breach of, or a default under, the
certificate or articles of incorporation or bylaws of the Company or
any of the Subsidiaries or any agreement, indenture, lease or other
instrument that is an exhibit to the Registration Statement to which
the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties is bound, will result in
the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of the Subsidiaries
under any such agreement, indenture, lease or instrument, nor will
any such action result in any violation of any existing law,
regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order or decree
known to such counsel, applicable to the Company, the Subsidiaries
or any of their respective properties;
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(x) No consent, approval, authorization or other
order of, or registration or filing with, any court,
regulatory body, administrative agency or other
governmental body, agency, or official is required on
the part of the Company (except as have been obtained
under the Act and the Exchange Act or such as may be
required under state securities or Blue Sky laws (as
to which such counsel need not express any opinion)
governing the purchase and distribution of the
Shares) for the valid issuance and sale of the Shares
to the Underwriters as contemplated by this
Agreement;
(xi) The Registration Statement and the
Prospectus and any supplements or amendments thereto
(except for the financial statements and the notes
thereto and the schedules and other financial and
statistical data included therein, as to which such
counsel need not express any opinion) comply as to
form in all material respects with the requirements
of the Act; and each of the Incorporated Documents
(except for the financial statements and the notes
thereto and the schedules and other financial and
statistical data included therein, as to which such
counsel need not express any opinion) complies as to
form in all material respects with the Exchange Act
and the rules and regulations of the Commission
thereunder;
(xii) To the knowledge of such counsel,
(A) other than as described or contemplated in the
Prospectus (or any supplement thereto), there are no
legal or governmental proceedings pending or
threatened against the Company or any of the
Subsidiaries, or to which the Company or any of the
Subsidiaries, or any of their property, is subject,
which are required to be described in the
Registration Statement or Prospectus (or any
amendment or supplement thereto) and (B) there are no
agreements, contracts, indentures, leases or other
instruments, that are required to be described in the
Registration Statement or the Prospectus (or any
amendment or supplement thereto) or to be filed as an
exhibit to the Registration Statement or any
Incorporated Document that are not described or filed
as required, as the case may be;
(xiii) The statements in the Registration
Statement and Prospectus, insofar as they are
descriptions of contracts, agreements or other legal
documents, or
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refer to statements of law or legal conclusions, are
accurate and present fairly the information required to
be shown;
Such opinion shall also state that, although counsel
has not undertaken, except as otherwise indicated in their
opinion, to determine independently, and does not assume
any responsibility for, the accuracy or completeness of
the statements in the Registration Statement, such counsel
has participated in the preparation of the Registration
Statement and the Prospectus, including review and
discussion of the contents thereof (including review and
discussion of the contents of all Incorporated Documents),
and nothing has come to the attention of such counsel that
has caused them to believe that the Registration Statement
(including the Incorporated Documents) at the time the
Registration Statement became effective, or the
Prospectus, as of its date and as of the Closing Date or
the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading or that any
amendment or supplement to the Prospectus, as of its
respective date, and as of the Closing Date or the Option
Closing Date, as the case may be, contained any untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading (it being understood that
such counsel need express no opinion with respect to the
financial statements and the notes thereto and the
schedules and other financial and statistical data
included in the Registration Statement or the Prospectus
or any Incorporated Document).
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In rendering their opinion as aforesaid, counsel may
rely upon an opinion or opinions, each dated the Closing
Date, of other counsel retained by them or the Company as
to laws of any jurisdiction other than the United States
or the State of Kansas, provided that (1) each such local
counsel is acceptable to the Representatives, (2) such
reliance is expressly authorized by each opinion so relied
upon and a copy of each such opinion is delivered to the
Representatives and is, in form and substance satisfactory
to them and their counsel, and (3) counsel shall state in
their opinion that they believe that they and the
Underwriters are justified in relying thereon.
(d) You shall receive on the Closing Date an opinion
of Xxxxxx, Xxxx & Xxxxxxx, counsel for the Selling
Stockholder, dated the Closing Date and addressed to you,
as Representatives of the several Underwriters, to the
effect that:
(i) This Agreement has been duly authorized,
executed and delivered by the Selling Stockholder;
(ii) To such counsel's knowledge, the
Selling Stockholder has full legal right, power and
authority, and has obtained any approval required by
law, to sell, assign, transfer and deliver good and
marketable title to the Shares which the Selling
Stockholder has agreed to sell pursuant to this
Agreement;
(iii) The execution and delivery of this
Agreement by the Selling Stockholder and the
consummation of the transactions contemplated hereby
will not conflict with, violate, result in a breach
of or constitute a default under the terms or
provisions of any agreement, indenture, mortgage or
other instrument known to such counsel to which the
Selling Stockholder is a party or by which it or any
of its assets or property is bound, or any court
order or decree or any law, rule, or regulation
applicable to the Selling Stockholder or to any of
the property or assets of the Selling Stockholder;
and
(iv) Upon delivery of the Shares to be sold
by the Selling Stockholder pursuant to this Agreement
and payment therefor as contemplated herein and
registration of such Shares in the names of the
Underwriters in the stock records of the Company, the
Underwriters will acquire good and marketable title
to
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such Shares free and clear of any lien, claim,
security interest, or other encumbrance, restriction
on transfer or other defect in title (assuming that
the Underwriters are without notice of any adverse
claim, as defined in the Uniform Commercial Code, and
are otherwise bona fide purchasers for the purposes
of the Uniform Commercial Code).
(e) You shall have received on the Closing Date an
opinion of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the
Underwriters, dated the Closing Date and addressed to you,
as Representatives of the several Underwriters, with
respect to the matters referred to in clauses (v), (vii),
(viii), (xi) and the penultimate paragraph of the
foregoing paragraph (c) and such other related matters as
you may request.
(f) You shall have received letters addressed to
you, as Representatives of the several Underwriters, and
dated the date hereof and the Closing Date from Deloitte &
Touche LLP, independent certified public accountants,
substantially in the forms heretofore approved by you.
(g) (i) No stop order suspending the effectiveness
of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been taken or,
to the knowledge of the Company, shall be contemplated by
the Commission at or prior to the Closing Date; (ii) there
shall not have been any change in the capital stock of the
Company nor any material increase in the short-term or
long-term debt of the Company (other than in the ordinary
course of business) from that set forth or contemplated in
the Registration Statement or the Prospectus (or any
amendment or Supplement thereto); (iii) there shall not
have been, since the respective dates as of which
information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto),
except as may otherwise be stated in the Registration
Statement and Prospectus (or any amendment or supplement
thereto), any material adverse change in the condition
(financial or other), business, prospects, properties, net
worth or results of operations of the Company and the
Subsidiaries taken as a whole; (iv) the Company and the
Subsidiaries shall not have any liabilities or
obligations, direct or contingent (whether or not in the
ordinary course of business), that are material to the
Company and the Subsidiaries, taken as a whole, other than
those reflected in the Registration Statement or the
Prospectus (or any amendment
-34-
or supplement thereto); and (v) all the representations and warranties
of the Company contained in this Agreement shall be true and correct on
and as of the date hereof and on and as of the Closing Date as if made
on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief executive
officer and the chief financial officer of the Company (or such other
officers as are acceptable to you), to the effect set forth in this
Section 10(g) and in Section 10(h) hereof.
(h) The Company shall not have failed at or prior to
the Closing Date to have performed or complied with any of
its agreements herein contained and required to be
performed or complied with by it hereunder at or prior to
the Closing Date.
(i) All the representations and warranties of the
Selling Stockholder contained in this Agreement shall be
true and correct on and as of the date hereof and on and
as of the Closing Date as if made on and as of the Closing
Date, and you shall have received a certificate, dated the
Closing Date and signed by the Selling Stockholder to the
effect set forth in this Section 10(i) and in Section
10(j) hereof.
(j) The Selling Stockholder shall not have failed at
or prior to the Closing Date to have performed or complied
with any of its agreements herein contained and required
to be performed or complied with by them hereunder at or
prior to the Closing Date.
(k) Prior to the Closing Date the Shares of Common
Stock which the Company agrees to sell pursuant to this
Agreement shall have been listed, subject to notice of
issuance, on the New York Stock Exchange.
(l) The Sellers shall have furnished or caused to be
furnished to you such further certificates and documents
as you shall have requested.
All such opinions, certificates, letters and other
documents will be in compliance with the provisions hereof only
if they are satisfactory in form and substance to you and your
counsel.
Any certificate or document signed by any officer of
the Company or the Selling Stockholder and delivered to you, as
-35-
Representatives of the Underwriters, or to counsel for the
Underwriters, shall be deemed a representation and warranty by
the Company or the Selling Stockholder, as the case may be, to
each Underwriter as to the statements made therein.
The several obligations of the Underwriters to
purchase Additional Shares hereunder are subject to the
satisfaction on and as of any Option Closing Date of the
conditions set forth in this Section 10, except that, if any
Option Closing Date is other than the Closing Date, the
certificates, opinions and letters referred to in paragraphs
(c) through (i) shall be dated the Option Closing Date in
question and the opinions called for by paragraphs (c), (d) and
(e) shall be revised to reflect the sale of Additional Shares.
11. EXPENSES. The Company agrees to pay the
following costs and expenses and all other costs and expenses
incident to the performance by them of their obligations
hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the registration statement
(including financial statements and exhibits thereto), each
Prepricing Prospectus, the Prospectus, and each amendment or
supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the
registration statement, each Prepricing Prospectus, the
Prospectus, the Incorporated Documents, and all amendments or
supplements to any of them, as may be reasonably requested for
use in connection with the offering and sale of the Shares;
(iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Shares, including any stamp
taxes in connection with the original issuance and sale of the
Shares; (iv) the printing (or reproduction) and delivery of
this Agreement, the preliminary and supplemental Blue Sky
Memoranda and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of
the Shares; (v) the listing of the Shares on the New York Stock
Exchange; (vi) notice of the offer and sale of the Shares under
the securities or Blue Sky laws of the several states as
provided in Section 5(j) hereof (including the reasonable fees,
expenses and disbursements of counsel for the Underwriters
relating to the preparation, printing or reproduction, and
delivery of the preliminary and supplemental Blue Sky Memoranda
and such notice filings); (vii) the filing fees and the fees
and expenses of counsel for the Underwriters in connection with
any filings required to be made with the National Association
of Securities Dealers, Inc.; (viii) the transportation and
other expenses incurred by or on behalf of Company
representatives in connection with presenta-
-36-
tions to prospective purchasers of the Shares; and (ix) the fees and expenses of
the Company's accountants and the fees and expenses of counsel (including
local and special counsel) for the Company and the Selling Stockholder. It
is understood, however, that, except as provided in this Section, Section
5(j) and Section 9 hereof, (x) the Underwriters shall pay all of their own
costs and expenses, including the fees of their counsel, transfer tax on
resale of any of the Shares by them and any "tombstone" advertising expense
incurred by them in connection with the offering of the Shares and (y) the
Selling Stockholder shall pay all the fees and expenses of its counsel.
The provisions of this Section 11 shall not affect, as between the
Sellers, any agreement between them regarding allocation of expenses to be
paid by them hereunder.
12. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto;
or (ii) if, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, when notification of the effectiveness of the registration
statement or such post-effective amendment has been released by the
Commission. Until such time as this Agreement shall have become effective, it
may be terminated by the Company, by notifying you, or by you, as
Representatives of the several Underwriters, by notifying the Company and the
Selling Stockholder.
If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is
not more than one-tenth of the aggregate number of Shares which the
Underwriters are obligated to purchase on the Closing Date, each
non-defaulting Underwriter shall be obligated, severally, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule I
hereto bears to the aggregate number of Firm Shares set forth opposite the
names of all non-defaulting Underwriters or in such other proportion as you
may specify in accordance with Section 20 of the Master Agreement Among
Underwriters of Xxxxx Xxxxxx Inc., to purchase the Shares which such
defaulting Underwriter or Underwriters are obligated, but fail or refuse, to
purchase. If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase on the Closing
Date
-37-
and the aggregate number of Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Shares which the
Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to you, the Selling Stockholder and the Company for the purchase
of such Shares by one or more non-defaulting Underwriters or other party or
parties approved by you, the Selling Stockholder and the Company are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter, the Selling
Stockholder or the Company. In any such case which does not result in
termination of this Agreement, either you the Selling Shareholder or the
Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in
the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any such
default of any such Underwriter under this Agreement. The term "Underwriter"
as used in this Agreement includes, for all purposes of this Agreement, any
party not listed in Schedule I hereto who, with your approval and the
approval of the Company and the Selling Stockholder, purchases Shares which
a defaulting Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 12 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
13. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company or the Selling Stockholder, by notice to the
Company, if prior to the Closing Date or any Option Closing Date (if
different from the Closing Date and then only as to the Additional Shares),
as the case may be, (i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market shall
have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York or Kansas shall have been declared
by either federal or state authorities, or (iii) there shall have occurred
any outbreak or escalation of hostilities or other international or domestic
calamity, crisis or change in political, financial or economic conditions,
the effect of which on the financial markets of the United States is such as
to make it, in your judgment, impracticable or inadvisable to commence or
continue the offering of the Shares at the offering price to
-38-
the public set forth on the cover page of the Prospectus or to enforce
contracts for the resale of the Shares by the Underwriters. Notice of such
termination may be given to the Company by telegram, telecopy or telephone
and shall be subsequently confirmed by letter.
14. INFORMATION FURNISHED BY THE UNDERWRITERS. The
statements set forth in the last paragraph on the cover page,
the stabilization legend on the inside cover page, and the
statements in the first, third and seventh paragraphs under the
caption "Underwriting" in any Prepricing Prospectus and in the
Prospectus, constitute the only information furnished by or on
behalf of the Underwriters through you as such information is
referred to in Sections 7(b) and 9 hereof.
15. MISCELLANEOUS. Except as otherwise provided in Sections 5, 12
and 13 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company, at the office of
the Company at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000-0000,
Attention: President; or (ii) if to the Selling Stockholder, at the office of
the Selling Stockholder at One Exeter Plaza, 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxx X. Xxxxx, or (iii) if to you, as
Representatives of the several Underwriters, care of Xxxxx Xxxxxx Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment
Banking Division.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Selling Stockholder, the Company, its directors and
officers, and the other controlling persons referred to in Section 9 hereof
and their respective successors and assigns, to the extent provided herein,
and no other person shall acquire or have any right under or by virtue of
this Agreement. Neither the term "successor" nor the term "successors and
assigns" as used in this Agreement shall include a purchaser from any
Underwriter of any of the Shares in his status as such purchaser.
16. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New
York.
This Agreement may be signed in various counterparts
which together constitute one and the same instrument. If
signed in counterparts, this Agreement shall not become
effec-
-39-
tive unless at least one counterpart hereof shall have been executed and
delivered on behalf of each party hereto.
-40-
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholder and the several Underwriters.
Very truly yours,
ATCHISON CASTING CORPORATION
By:
---------------------------------
Name: Xxxx X. Xxxxx
Title: President and Chief
Executive Officer
RIVERSIDE FUND I, L.P.
By: RPI Limited Partnership I,
its managing General Partner
By:
---------------------------------
Name: Xxxx X. Xxxxx
Title: General Partner
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
XXXXX XXXXXX INC.
XXXXXX X. XXXX & COMPANY
As Representatives of the
Several Underwriters
By XXXXX XXXXXX INC.
By:
---------------------------------
Managing Director
SCHEDULE I
ATCHISON CASTING CORPORATION
Number of
Underwriter Firm Shares
----------- -----------
Xxxxx Xxxxxx Inc.....................
Xxxxxx X. Xxxx & Company.............
------------
Total.......... 3,800,000
------------
SCHEDULE II
PERSONS TO EXECUTE LOCK-UP AGREEMENTS
Xxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Marlborough
Xxxxx X. XxXxxxxx
Xxxxxxx X. Xxxxxx
Xxxxx Xxxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxx
Xxxx X. Xxxxxxx
Xxx X. Xxxx
SCHEDULE III
SUBSIDIARIES
JURISDICTION OF PERCENTAGE
NAME INCORPORATION OWNERSHIP
Amite Foundry and Machine, Inc. Louisiana 100%
Prospect Foundry, Inc. Minnesota Approximately 98.58%
of Class A Common Stock
(approximately 90.90% of
outstanding Common Stock)
Quaker Alloy, Inc. Pennsylvania Approximately 97.0%
of Class A Common Stock
(approximately 91.9% of
outstanding Common Stock)
Canadian Steel Foundries Ltd. Canada Approximately 98.0% of
Class A Common Stock
(approximately 92.2% of
outstanding Common Stock)
0000-0000 Xxxxxx Inc. Canada Approximately 98.0% of
Class A Common Stock
(approximately 92.2% of
outstanding Common Stock)
177153 Canada Inc. Canada 100%
(a subsidiary of 9012-0411 Quebec Inc.)
3210863 Canada Inc. Canada 100%
Xxxxxx International, Inc. Wisconsin 100%(a)
Empire Steel Castings, Inc. Pennsylvania 100%
La Grange Foundry Inc. Missouri 100%
The G&C Foundry Company Ohio Approximately 98.92% of
Class A Common Stock
(approximately 92.0% of
outstanding Common Stock)
JURISDICTION OF PERCENTAGE
NAME INCORPORATION OWNERSHIP
Xxxxxxxx Casting Foreign Sales Barbados 100%
Corporation
Los Angeles Die Casting Inc. California Approximately 95.4% of
Class A Common Stock
(approximately 90.65% of
outstanding Common Stock)
CASTCAN Steel Ltd. Canada 100%
Canada Alloy Castings, Ltd. Canada 100%
(a subsidiary of CASTCAN Steel Ltd.)
Pennsylvania Steel Foundry & Ma Pennsylvania 100%
chine Company
Xxxx Foundry Corp. Massachusetts 100%
(a) Except for certain statutory liabilities which may be
imposed by Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law for unpaid employee wages.
