EXHIBIT 1.1
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STEELCASE INC.
CLASS A COMMON STOCK
_____________
UNDERWRITING AGREEMENT
(U.S. Version)
--------------------------
, 1998
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Certain shareholders named in Schedule II hereto (the "Selling
Shareholders") of Steelcase Inc., a Michigan corporation (the "Company"),
propose, subject to the terms and conditions stated herein, to sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
9,720,000 shares (the "Firm Shares") and, at the election of the Underwriters,
up to 1,458,000 additional shares (the "Optional Shares") of Class A Common
Stock ("Stock") of the Company (the Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "Shares").
It is understood and agreed to by all parties that the Company and the
Selling Shareholders are concurrently entering into an agreement (the
"International Underwriting Agreement") providing for the sale by the Selling
Shareholders of up to a total of 2,430,000 shares of Stock (the "International
Shares"), including the overallotment option thereunder, through arrangements
with certain underwriters outside the United States (the "International
Underwriters"), for whom ▇▇▇▇▇▇▇ Sachs International, Bear, ▇▇▇▇▇▇▇
International Limited, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited and ▇▇▇▇▇
▇▇▇▇▇▇ Inc. are acting as lead managers. Anything herein or therein to the
contrary notwithstanding, the respective closings under this Agreement and the
International Underwriting Agreement are hereby expressly made conditional on
one another. The Underwriters hereunder and the International Underwriters are
simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates") which provides,
among other things, for the transfer of shares of
Stock between the two syndicates. Two forms of prospectus are to be used in
connection with the offering and sale of shares of Stock contemplated by the
foregoing, one relating to the Shares hereunder and the other relating to the
International Shares. The latter form of prospectus will be identical to the
former except for certain substitute pages. Except as used in Sections 2, 3, 4,
9 and 11 herein, and except as the context may otherwise require, references
hereinafter to the Shares shall include all the shares of Stock which may be
sold pursuant to either this Agreement or the International Underwriting
Agreement, and references herein to any prospectus whether in preliminary or
final form, and whether as amended or supplemented, shall include both the U.S.
and the international versions thereof.
Unless otherwise indicated herein, the provisions of this Agreement assume
that the Recapitalization (the "Recapitalization") described under the caption
"Description of Capital Stock-Recapitalization" in the Prospectus has been
consummated.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-41647)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any post-
effective amendment thereto, each in the form heretofore delivered to
you, and, excluding exhibits thereto, for each of the other
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, no other document
with respect to the Initial Registration Statement has heretofore been
filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-
effective amendment thereto or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Act is hereinafter called a "Preliminary Prospectus"; the
various parts of the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, including all exhibits thereto
and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the
Act in accordance with Section 5(a) hereof and deemed by virtue of
Rule 430A under the Act to be part of the Initial Registration
Statement at the time it was declared effective, each as amended at
the time such part of the registration statement became effective or
such part of the rule 462(b) Registration Statement, if any, became or
hereinafter becomes effective, are hereinafter collectively called the
"Registration Statement"; and such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus");
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(ii) No order preventing or suspending the use of the Preliminary
Prospectus dated January 20, 1998, or any Preliminary Prospectus
dated subsequent thereto, has been issued by the Commission, and such
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the rules and
regulations of the Commission 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 to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
expressly for use therein;
(iii) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein;
(iv) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in
the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus which would individually or in the aggregate result in a
material adverse change, or involve a prospective material adverse
change, in or affecting the general affairs, prospects, management,
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect"); and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock of the
Company or the Subsidiaries (as defined herein), or the short-term
(not including accounts payable) or long-term debt of the Company or
the Company and its subsidiaries on a consolidated basis (other than
changes not in excess of $5 million) or any change that would
constitute a Material Adverse Effect, otherwise than as set forth or
contemplated in the Prospectus;
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(v) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described in
the Prospectus or such as do not materially affect the business of the
Company or value of such property and do not interfere materially with
the use made and proposed to be made of such property by the Company
and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere materially with the use made and
proposed to be made of such property and buildings by the Company and
its subsidiaries;
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Michigan,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each subsidiary of the Company
listed in Exhibit 21.1 of the Initial Registration Statement (each a
"Subsidiary", and collectively, the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation;
(vii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company (including the Shares to be sold by the Selling
Shareholders hereunder and under the International Underwriting
Agreement) have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description of the Stock
contained in the Prospectus; and all of the issued shares of capital
stock of each Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for directors'
qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims; and all
of the shares of Steelcase Strafor, S.A. ("Steelcase Strafor") have
been duly and validly authorized and issued, are fully paid and non-
assessable and the Company owns directly 49.9% of the issued and
outstanding shares of Steelcase Strafor and its employees who are
directors of Steelcase Strafor own .01% of the issued and outstanding
shares of Steelcase Strafor, in each case free and clear of all liens,
encumbrances, equities or claims.
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(viii) Each of this Agreement and the International Underwriting
Agreement has been duly authorized, executed and delivered by the
Company;
(ix) The compliance by the Company with all of the provisions of
this Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject which would individually or in the aggregate
have a Material Adverse Effect, nor will such action result in any
violation of the provisions of the Company's restated articles of
incorporation as in effect on the date hereof (the "Restated Articles
of Incorporation"), the Company's second restated articles of
incorporation (the "Second Restated Articles of Incorporation") in the
form previously furnished to you and to be filed prior to the First
Time of Delivery (as defined in Section 4 hereof), or the by-laws of
the Company in effect on the date hereof or the amended by-laws of the
Company (the "Amended By-Laws") to be effective upon filing the Second
Restated Articles of Incorporation of the Company or any statute or
any order, rule or regulation of any court or governmental agency or
body (hereinafter referred to as a "Governmental Agency") having
jurisdiction over the Company or any of its subsidiaries or any of
their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such Governmental Agency
(hereinafter referred to as a "Governmental Authorization") is
required for the sale of the Shares or the consummation by the Company
of the transactions contemplated by this Agreement and the
International Underwriting Agreement, except the registration under
the Act of the Shares and such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters and the
International Underwriters;
(x) Neither the Company nor any of its subsidiaries is (i) in
violation of its constating governing documents or (ii) in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound
which would individually or in the aggregate have a Material Adverse
Effect;
(xi) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute
a
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summary of the terms of the Stock, under the caption "Certain United
States Federal Income Tax Considerations", insofar as they purport to
describe the material tax consequences of an investment in the Stock,
and under the caption "Underwriting", insofar as they purport to
describe the provisions of this Agreement and the International
Underwriting Agreement, fairly summarize the matters therein
described;
(xii) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect; and,
to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(xiii) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company"
or an entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(xiv) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes;
(xv) BDO ▇▇▇▇▇▇▇, LLP who have certified certain consolidated
financial statements of the Company, are independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder;
(xvi) The Company's Board of Directors and shareholders have each
duly approved the Second Restated Articles of Incorporation; and
(xvii) The Company and its shareholders have taken all action
necessary to authorize the Recapitalization; upon filing of the Second
Restated Articles of Incorporation with the Michigan Department of
Consumer and Industry Services and prior to the First Time of Delivery
(as defined in Section 4), all shares of common stock and preferred
stock of the Company outstanding on the date hereof will convert into
shares of Class B Common Stock of the Company (the "Class B Common
Stock") and, after giving effect to the Second Restated Articles of
Incorporation, a stock split will occur pursuant to which each share
of Class B common Stock then outstanding shall receive a stock
dividend of 699 shares of Class B Common Stock; pursuant to the terms
of the Second Restated Articles of Incorporation, each share of Class
B Common Stock to be sold by the Selling Shareholders pursuant to this
Agreement and the International
6
Underwriting Agreement will convert into one share of Class A Common
Stock concurrently with the consummation of such sale; there are no
conditions precedent to, or further actions necessary for, the
Recapitalization to take effect other than the filing of the Second
Restated Articles of Incorporation with the appropriate official of
the State of Michigan and there are no conditions precedent to or
further actions necessary for the conversion of the shares of Class B
Common to shares of Class A Common Stock, except for the execution and
delivery of this Agreement, the International Underwriting Agreement
and the Power of Attorney.
(b) Each of the Selling Shareholders severally represents and
warrants to, and agrees with, each of the Underwriters and the Company that:
[if Selling Shareholder is a corporation or partnership--add
representation regarding due incorporation or formation]
(i) All Governmental Authorizations necessary for the execution
and delivery by such Selling Shareholder of this Agreement, the
International Underwriting Agreement, the Power of Attorney and the
Custody Agreement hereinafter referred to, and for the sale and
delivery of the Shares to be sold by such Selling Shareholder
hereunder and under the International Underwriting Agreement, have
been obtained (other than state blue sky laws); and such Selling
Shareholder has full right, power and authority to enter into this
Agreement, the International Underwriting Agreement, the Power of
Attorney and the Custody Agreement and to sell, assign, transfer and
deliver the Shares to be sold by such Selling Shareholder hereunder
and under the International Underwriting Agreement;
(ii) Each of this Agreement and the International Underwriting
Agreement has been duly authorized (if such Selling Shareholder is a
corporation or partnership), and has been duly executed and delivered
by or on behalf of such Selling Shareholder;
(iii) Each of the Power of Attorney and the Custody Agreement
has been duly authorized (if such Selling Shareholder is a corporation
or partnership), and has been duly executed and delivered by such
Selling Shareholder and constitutes a valid and binding agreement of
such Selling Shareholder in accordance with its terms;
(iv) The sale of the Shares to be sold by such Selling
Shareholder hereunder and under the International Underwriting
Agreement and the compliance by such Selling Shareholder with all of
the provisions of this Agreement, the International Underwriting
Agreement, the Power of Attorney and the Custody Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or
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constitute a default under, any statute, or any material indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Selling Shareholder is a party or by which
such Selling Shareholder is bound, or to which any of the property or
assets of such Selling Shareholder is subject, nor will such action
result in any violation of the provisions of the Articles of
Incorporation or By-laws of such Selling Shareholder if such Selling
Shareholder is a corporation, the Partnership Agreement of such
Selling Shareholder if such Selling Shareholder is a partnership or
any statute or any order, rule or regulation of any Governmental
Agency having jurisdiction over such Selling Shareholder or the
property of such Selling Shareholder;
(v) Such Selling Shareholder has, and immediately prior to each
Time of Delivery (as defined in Section 4 hereof) such Selling
Shareholder will have, good and valid title to the Shares to be sold
by such Selling Shareholder hereunder and under the International
Underwriting Agreement, free and clear of all liens, encumbrances,
equities or claims; and, upon delivery of such Shares and payment
therefor pursuant hereto and thereto, good and valid title to such
Shares, free and clear of all liens, encumbrances, equities or claims,
will pass to the several Underwriters or the International
Underwriters, as the case may be;
(vi) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, such Selling Stockholder will not, directly or indirectly,
offer, pledge, sell, contract to sell or otherwise dispose of, except
as provided hereunder or under the International Underwriting
Agreement, any securities of the Company that are substantially
similar to the Shares, including but not limited to any securities
that are convertible into or exchangeable for, or that represent the
right to receive, Stock or any such substantially similar securities
without the prior written consent of ▇▇▇▇▇▇▇, Sachs & Co. (other than
pursuant to (i) the conversion or exchange of convertible or
exchangeable securities outstanding as of the date hereof or to be
issued in the Recapitalization, (ii) the Shares, (iii) the shares of
Class B Common Stock to be sold to the Company in connection with the
offering or (iv) a transfer by gift or sale of Class A Common Stock or
Class B Common Stock; provided the transferee agrees in writing to the
same terms and conditions set forth herein).
(vii) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(viii) To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectus, the Prospectus
or any
8
amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, and the Prospectus and
any further amendments or supplements to the Registration Statement
and the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
(ix) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Shareholder will deliver to you prior to or
at the First Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department
regulations in lieu thereof);
(x) Certificates in negotiable form representing all of the
Shares to be sold by such Selling Shareholder hereunder and under the
International Underwriting Agreement have been placed in custody under
a Custody Agreement, in the form heretofore furnished to you (the
"Custody Agreement"), duly executed and delivered by such Selling
Shareholder to the Company, as custodian (the "Custodian"), and such
Selling Shareholder has duly executed and delivered a Power of
Attorney, in the form heretofore furnished to you (the "Power of
Attorney"), appointing the persons indicated in Schedule II hereto,
and each of them, as such Selling Shareholder's attorneys-in-fact (the
"Attorneys-in-Fact") with authority to execute and deliver this
Agreement and the International Underwriting Agreement on behalf of
such Selling Shareholder, to determine the purchase price to be paid
by the Underwriters and the International Underwriters to the Selling
Shareholders as provided in Section 2 hereof, to authorize the
delivery of the Shares to be sold by such Selling Shareholder
hereunder and otherwise to act on behalf of such Selling Shareholder
in connection with the transactions contemplated by this Agreement,
the International Underwriting Agreement and the Custody Agreement;
and
(xi) The Shares represented by the certificates held in custody
for such Selling Shareholder under the Custody Agreement are subject
to the interests of the Underwriters hereunder and the International
Underwriters under the International Underwriting Agreement; the
arrangements made by such Selling Shareholder for such custody, and
the appointment by such Selling Shareholder of the Attorneys-in-Fact
by the
9
Power of Attorney, are to that extent irrevocable; the obligations of
the Selling Shareholders hereunder shall not be terminated by
operation of law, whether by the death or incapacity of any individual
Selling Shareholder or, in the case of an estate or trust, by the
death or incapacity of any executor or trustee or the termination of
such estate or trust, or in the case of a partnership or corporation,
by the dissolution of such partnership or corporation, or by the
occurrence of any other event; if any individual Selling Shareholder
or any such executor or trustee should die or become incapacitated, or
if any such estate or trust should be terminated, or if any such
partnership or corporation should be dissolved, or if any other such
event should occur, before the delivery of the Shares hereunder,
certificates representing the Shares shall be delivered by or on
behalf of the Selling Shareholders in accordance with the terms and
conditions of this Agreement, of the International Underwriting
Agreement and of the Custody Agreements; and actions taken by the
Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid
as if such death, incapacity, termination, dissolution or other event
had not occurred, regardless of whether or not the Custodian, the
Attorneys-in-Fact, or any of them, shall have received notice of such
death, incapacity, termination, dissolution or other event.
2. Subject to the terms and conditions herein set forth, (a) each of the
Selling Shareholders agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from each of the Selling Shareholders, at a purchase price per share of
$...................., the number of Firm Shares (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the aggregate number of
Firm Shares to be sold by each of the Selling Shareholders as set forth opposite
their respective names in Schedule II hereto by a fraction, the numerator of
which is the aggregate number of Firm Shares to be purchased by such Underwriter
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased by
all of the Underwriters from all of the Selling Shareholders hereunder, and (b)
in the event and to the extent that the Underwriters shall exercise the election
to purchase Optional Shares as provided below, each of the Selling Shareholders
agrees, severally and not jointly, to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from each of
the Selling Shareholders, at the purchase price per share set forth in clause
(a) of this Section 2, that portion of the number of Optional Shares as to which
such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional
Shares by a fraction the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the maximum number of Optional Shares that all of the Underwriters are entitled
to purchase hereunder.
The Selling Shareholders, as and to the extent indicated in Schedule II
hereto, hereby grant, severally and not jointly, to the Underwriters the right
to purchase at their
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election up to 1,458,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares shall be made in proportion to the number of Optional Shares to
be sold by each Selling Shareholder. Any such election to purchase Optional
Shares may be exercised by written notice from you to the Company and the
Attorneys-in-Fact, given within a period of 30 calendar days after the date of
this Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the Attorneys-in-Fact otherwise
agree in writing, earlier than two or later than ten business days after the
date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may request upon at least forty-eight hours' prior
notice to the Selling Shareholders, shall be delivered by or on behalf of the
Selling Shareholders to ▇▇▇▇▇▇▇, Sachs & Co., through the facilities of The
Depository Trust Company ("DTC"), for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of same-day funds payable to the order of the Custodian, as their
interests may appear. The Custodian will cause the certificates representing
the Shares to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) with respect thereto at
the office of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(the "Designated Office"). The time and date of such delivery and payment shall
be, with respect to the Firm Shares, 9:30 a.m., New York City time, on
............., 1998 or on such other time and date as ▇▇▇▇▇▇▇, Sachs & Co. and
the Selling Shareholders may agree upon in writing, and, with respect to the
Optional Shares, 9:30 a.m., New York City time, on the date specified by
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. in the written notice given by ▇▇▇▇▇▇▇, Sachs & Co. of the
Underwriters' election to purchase such Optional Shares, or such other time and
date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and the Selling Shareholders agree upon in writing.
Such time and date for delivery of the Firm Shares is herein called the "First
Time of Delivery", such time and date for delivery of the Optional Shares, if
not the First Time of Delivery, is herein called the "Second Time of Delivery",
and each such time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(l) hereof will be delivered at the offices of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Closing Location"),
and the Shares will be delivered at the Designated Office, all at each Time of
Delivery. A meeting will be held at the Closing Location at ..............p.m.,
New York City time, on the New York Business Day next preceding each Time of
Delivery, at which meeting the final drafts of the documents to
11
be delivered pursuant to the preceding sentence will be available for review by
the parties hereto. For the purposes of this Section 4, "New York Business Day"
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish you copies thereof; to advise you,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City Time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with copies of the Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the offering
or sale of the Shares and if at such time any events shall have occurred as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
12
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such period to amend or supplement the Prospectus
in order to comply with the Act, to notify you and upon your request to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance, and in case
any Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the time
of issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as
you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder and under the International Underwriting Agreement, any
securities of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to the
Recapitalization or the Steelcase Inc. Employee Stock Purchase Plan, the
Steelcase Inc. Incentive Compensation Plan and the Steelcase Inc.
Nonqualified Stock Option Plan, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of this
Agreement), without the prior written consent of ▇▇▇▇▇▇▇, Sachs & Co.;
(f) To furnish to its shareholders as soon as practicable after the end
of each fiscal year an annual report (including a balance sheet and
statements of income, shareholders' equity and cash flows of the Company
and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter
ending after the effective date of the Registration Statement), to make
available to its shareholders consolidated summary financial information of
the Company and its subsidiaries for such quarter in reasonable detail;
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished or made available to
shareholders generally, and to deliver to you (i) as soon as they are
available, copies of any reports and financial statements furnished to or
filed with the Commission or any national
13
securities exchange on which any class of securities of the Company is
listed (such financial statements to be on a consolidated basis to the
extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its shareholders generally or to the Commission);
and (ii) after entering into an appropriate confidentiality undertaking
such additional information concerning the business and financial condition
of the Company as you may from time to time reasonably request;
(h) If the Company or the Selling Shareholders elect to rely upon Rule
462(b), the Company shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462(b) by 10:00 P.M. Washington,
D.C. time, on the date of this Agreement, and the Company shall at the time
of filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the Act;
(i) To use its best efforts to list, subject to notice of issuance,
the Shares on The New York Stock Exchange, Inc. (the "Exchange"); and
(j) To cause the Second Restated Articles of Incorporation to be duly
executed, filed and recorded in accordance with the laws of the State of
Michigan prior to the First Time of Delivery and to cause all such other
actions that are necessary to effect the Recapitalization prior to the
First Time of Delivery.
6. (a) The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the International Underwriting
Agreement, the Agreement between Syndicates, the Selling Agreements, the Blue
Sky Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section
5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky surveys; (iv) all fees and expenses in connection with listing the
Shares on the Exchange; (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vi) the cost of preparing stock certificates;
(vii) the cost and charges of any transfer agent or registrar; (viii) the fees
and expenses of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Kotel, counsel for certain Selling
Shareholders; and (ix) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section; and (b) each Selling Shareholder covenants and agrees with the
Company and the several Underwriters that (unless otherwise provided in a
separate agreement entered into prior to the date hereof between the Company and
such Selling Shareholder pursuant to which the Company has agreed to pay or
cause to be paid certain additional costs and expenses of such Selling
Shareholder) such Selling Shareholder will pay or
14
cause to be paid all costs and expenses incident to the performance of such
Selling Shareholder's obligations hereunder which are not otherwise specifically
provided for in this Section, including (i) any fees and expenses of counsel for
such Selling Shareholder, if such counsel is other than ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
Kotel, (ii) all taxes incident to the sale and delivery of the Shares to be sold
by such Selling Shareholder to the Underwriters hereunder. In connection with
clause (b) (ii) of the preceding sentence, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. agrees to pay
New York State stock transfer tax, and the Selling Shareholder agrees to
reimburse ▇▇▇▇▇▇▇, Sachs & Co. for associated carrying costs if such tax payment
is not rebated in accordance with New York Tax Law Section 280-a(6)[; provided,
however, that the Selling Shareholder shall have no obligation to reimburse
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. if the failure to receive a rebate in accordance with New
York Tax Law Section 280-a(6) is attributable to any act (or omission) on the
part of ▇▇▇▇▇▇▇, Sachs & Co. or its officers, agents, employees, successors or
assigns]. It is understood, however, that the Company shall bear, and the
Selling Shareholders shall not be required to pay or to reimburse the Company
for, the cost of any other matters not directly relating to the sale and
purchase of the Shares pursuant to this Agreement, and that, except as provided
in this Section, and Sections 8 and 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Shareholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Shareholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery,
with respect to the incorporation of the Company, the validity of the
Shares being delivered at such Time of Delivery, the Registration
Statement, the Prospectus as well as such related matters as you may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
15
(c) Cravath, Swaine & ▇▇▇▇▇, counsel for the Company, shall have
furnished to you their written opinion (a draft of which is attached as
Annex II(a)), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) This Agreement and the International Underwriting Agreement
have been duly executed and delivered by the Company;
(ii) No authorization, approval or other action by, and no notice
to, consent of, order of, or filing with, any United States Federal or
New York governmental authority or regulatory body is required for the
consummation of the transactions contemplated by this Agreement and
the International Underwriting Agreement, except such as have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Shares by the Underwriters and the International
Underwriters;
(iii) None of the issue and sale of the Shares, the consummation
of any other of the transactions contemplated by this Agreement and
the International Underwriting Agreement or the performance of the
terms of this Agreement and the International Underwriting Agreement
will contravene any law, rule or regulation of the United States or
the State of New York or, to such counsel's knowledge, any order or
decree of any court or government agency or instrumentality;
(iv) The statements made in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute
summaries of the terms of the Stock, under the caption "Certain United
States Federal Income Tax Consideration", insofar as they purport to
describe the material tax consequences of an investment in the Stock,
and under the caption "Underwriting", insofar as they purport to
summarize the terms of the Agreement and the International
Underwriting Agreement, fairly summarize the matters therein
described;
(v) To such counsel's knowledge, there is no contract, indenture,
mortgage, loan agreement, note, lease or other document of a character
required to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit, which is not described or filed as
required;
(vi) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940; and
(vii) The compliance by the Company with all of the provisions of
the Underwriting Agreement and the International Underwriting
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property
or assets of the Company or its subsidiaries is subject, nor will
such action result in any violation of the provisions of the Restated
Articles of Incorporation or Amended By-laws of the Company or any
statute or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties;
16
(d) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇, Michigan counsel for the
Company, shall have furnished to you their written opinion (a draft of which is
attached as Annex II(b)), dated such Time of Delivery, in form and substances
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Michigan, with
full corporate power and authority to own its properties and conduct its
businesses as described in the Prospectus;
(ii) Steelcase Financial Services Inc., a subsidiary of the
Company, is a corporation validly existing and in good standing under the
laws of the State of Michigan; and all the issued shares of capital stock
of each such subsidiary are, to such counsel's knowledge, owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims;
(iii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered as of such Time of Delivery)
have been duly and validly authorized and issued and are fully paid and
non-assessable; and the Shares conform to the description of the Stock
contained in the Prospectus;
(iv) This Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by the Company;
17
(v) None of the issue and sale of the Shares, consummation of any
other of the transactions contemplated by this Agreement and the
International Underwriting Agreement or the compliance by the Company with
all of the terms of this Agreement or the International Underwriting
Agreement will result in any violation of the Second Restated Articles of
Incorporation or Amended By-laws or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or
body located in Michigan having jurisdiction over the Company or any of its
properties;
(vi) No authorization, approval or other action by, and no notice
to, consent of, order of, or filing with, any Michigan governmental
authority or regulatory body is required for the consummation of the
transactions contemplated by this Agreement or the International
Underwriting Agreement, except for the filing of the Second Restated
Articles of Incorporation with the Michigan Department of Consumer and
Industry Services and except such as may be required under the blue sky
laws of the State of Michigan in connection with the purchase and
distribution of the Shares by the Underwriters and the International
Underwriters; and
(vii) The Company's Board of Directors and shareholders have each
duly approved the Second Restated Articles of Incorporation and the Company
has taken all corporate action necessary to authorize the Recapitalization;
upon filing the Second Restated Articles of Incorporation with the Michigan
Department of Consumer and Industry Services, the Recapitalization will be
complete and all shares of common stock and preferred stock of the Company
outstanding on the date thereof will convert into shares of Class B Common
Stock of the Company ("Class B Common Stock"); the Board of Directors of
the Company has duly authorized a stock split pursuant to which each share
of Class B Common Stock then outstanding shall receive a stock dividend of
699 shares of Class B Common Stock (the "Stock Split") and the Board of
Directors has taken all corporate action necessary to effect the Stock
Split; pursuant to the terms of the Second Restated Articles of
Incorporation, each share of Class B Common Stock to be sold by the Selling
Stockholders pursuant to the Underwriting Agreement and the International
Underwriting Agreement will automatically convert into one share of Class A
Common Stock concurrently with the consummation of such sale without any
further action necessary by the Board of Directors.
In rendering such opinion, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ may
state that they express no opinion as to the laws of any jurisdiction
outside the State of Michigan.
(e) ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General Counsel of the Company, shall
have furnished to you his written opinion (a draft of which is attached as
Annex II(c)), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
18
(i) Each of the Company and Steelcase Financial Services,
Inc., is duly qualified as a foreign corporation to transact
business and is in good standing under the laws of each
jurisdiction in which the ownership or leasing of its properties
or the conduct of its business requires such qualification, other
than jurisdictions in which the failure so to qualify would not
have a Material Adverse Effect;
(ii) To such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Company or any of
its
19
subsidiaries is a party or of which any property of which the
Company or any of its subsidiaries is subject, which, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse
Effect; and to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by government
authorities or threatened by others;
(iii) To such counsel's knowledge, neither the Company nor
any of its subsidiaries is in violation of its Articles of
Incorporation or By-Laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or by which it or any of its properties may
be bound;
(iv) In addition, such counsel shall deliver at such Time
of Delivery a statement (which may be contained in a separate
letter) to the effect that: although such counsel does not assume
any responsibility for the accuracy or completeness of the
statements made in the Registration Statement and Prospectus,
except insofar as such statements relate to such counsel and
except to the extent set forth in paragraph (iii) above, such
counsel's work in connection with the preparation of the
Registration Statement and Prospectus did not disclose any
information that gave them reason to believe that: (A) the
Registration Statement, at the time the Registration Statement
became effective or was last amended or deemed to be amended, or
the Prospectus, as of its date, and at the Time of Delivery (in
each case except the financial statements and other information of
an accounting or financial nature included therein, as to which
such counsel need not express any views), was not appropriately
responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder, or (B) the Registration Statement, at the
time the Registration Statement became effective or was last
amended or deemed to be amended, 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 the Prospectus, as of its date, and at the
Time of Delivery, includes an untrue statement of a material fact
or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading (in each case except for the
financial statements and other information of an accounting or
financial nature included therein, as to which such counsel need
not express any view).
In rendering such opinion, ▇▇. ▇▇▇▇▇▇▇▇ may state that he
expresses no opinion as to the laws of any jurisdiction outside the State
of Michigan.
(f) Stibbe Simont ▇▇▇▇▇▇▇ Duhot, French counsel for the Company,
shall have furnished to you their written opinion (a draft of is which
attached as Annex II (d)), dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that Steelcase Strafor has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the France; all of the shares of Capital Stock
of Steelcase Strafor, S.A. have been duly and validly authorized
20
and, the Company owns directly or indirectly 50% of the outstanding
shares of capital stock of Steelcase Strafor, free and clear of all liens,
encumbrances, equities or claims (in each case such counsel being entitled
to rely in respect of matters of fact upon certificates of officers of the
Company, its subsidiaries or Steelcase Strafor, provided that such counsel
shall state that they believe that both you and they are justified in
relying upon such opinions and certificates).
In rendering such opinion, Stibbe Simont ▇▇▇▇▇▇▇ Duhot may state
that they express no opinion as to the laws of any jurisdiction outside
of France.
(g) Tory ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ & Binnington, Canadian counsel for the
Company, shall have furnished to you their written opinion (a draft of
which is attached as Annex II(e)), dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that Steelcase Canada Ltd., a
subsidiary of the Company, has been duly incorporated and is a corporation
validly existing under the laws of Canada; and all the issued shares of
capital stock of Steelcase Canada Ltd. have been duly and validly
authorized and issued, are fully paid and non-assessable and (except for
directors' qualifying shares); are owned directly or indirectly by the
Company, free and clear and all liens, encumbrances, equities or claims;
In rendering such opinion, Tory ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ may
state that they express no opinion as to the laws of any jurisdiction
outside of Canada.
(h) The respective counsel for each of the Selling Shareholders,
as indicated in Schedule II hereto, each shall have furnished to you their
written opinion (a draft of each such opinion is attached respectively as
Annex II(f), (g) and (h) hereto) with respect to each of the Selling
Shareholders for whom they are acting as counsel, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) A Power of Attorney and a Custody Agreement have been
duly authorized (if such Selling Shareholder is a corporation or a
partnership), executed and delivered by such Selling Shareholder
and constitute valid and binding agreements of such Selling
Shareholder in accordance with their terms;
(ii) This Agreement and the International Underwriting
Agreement have been duly authorized (if such Selling Shareholder
is a corporation or a partnership), executed and delivered by or
on behalf of such Selling Shareholder; and the sale of the Shares
to be sold by such Selling Shareholder hereunder and thereunder
and the compliance by such Selling Shareholder with all of the
provisions of this Agreement and the International Underwriting
Agreement, the Power of Attorney and the Custody Agreement and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any
terms or provisions of, or constitute a default under, any
statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which such
Selling Shareholder is a
21
party or by which such Selling Shareholder is bound, or to which any
of the property or assets of such Selling Shareholder is subject, nor
will such action result in any violation of the provisions of the
Articles of Incorporation or By-laws of such Selling Shareholder if
such Selling Shareholder is a corporation, the Partnership Agreement
of such Selling Shareholder if such Selling Shareholder is a
partnership or, to the best of such counsel's knowledge after
reasonable investigation, any material order, rule or regulation known
to such counsel of any court or governmental agency or body having
jurisdiction over such Selling Shareholder or the property of such
Selling Shareholder (other than blue sky laws);
(iii) Other than consents, approvals and authorizations under the
Act and such as may be required under foreign securities or Blue Sky
laws in connection with the purchase and distribution of such Shares
by the Underwriters or the International Underwriters with respect to
which no opinion is given, no consent, approval, authorization or
order of any court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement and
the International Underwriting Agreement in connection with the Shares
to be sold by such Selling Shareholder hereunder or thereunder, except
authorizations which have been duly obtained and are in full force and
effect;
(iv) Immediately prior to the Time of Delivery such Selling
Shareholder had good and valid title to the Shares to be sold at the
Time of Delivery by such Selling Shareholder under this Agreement and
the International Underwriting Agreement, free and clear of all liens,
encumbrances, equities or claims, and full right, power and authority
to sell, assign, transfer and deliver the Shares to be sold by such
Selling Shareholder hereunder and thereunder; and
(v) Upon delivery of the Shares to be sold by each Selling
Shareholder pursuant to this Agreement, the International Underwriting
Agreement, the Power of Attorney and the Custody Agreement against
payment therefor, and assuming that such Shares are purchased in good
faith and without notice of any adverse claim (in each case within the
meaning of the Uniform Commercial Code), the Underwriters and the
International Underwriters (as the case may be), purchasing such
Shares will acquire good and valid title to such Shares free and clear
of any adverse claim pursuant to Section 8-302 of the Uniform
Commercial Code.
In rendering such opinion, such counsel may state that such opinions are
limited to (a) U.S. Federal laws or (b) New York, Michigan, Florida or
California law (to the extent relevant to such opinion and as may be reasonably
requested by the Underwriters) in rendering the opinion in subparagraph (iv)
such counsel may rely upon a Certificates of such Selling Shareholder in respect
of matters of fact as to ownership of, and liens, encumbrances, equities or
claims on or the existence of agreements to which it is a party affecting, the
Shares sold by such Selling Shareholder, provided that such counsel shall state
that they
22
believe that both you and they have no reason to believe that you are not
justified in relying upon such Certificates;
(i) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at each Time of Delivery, BDO
▇▇▇▇▇▇▇, LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to
you, to the effect set forth in Annex I hereto (the executed copy of the
letter delivered prior to the execution of this Agreement is attached as
Annex I(a) hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Annex I(b)
hereto);
(j)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus,
and (ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock of the
Company or its Subsidiaries or in the short-term (not including accounts
payable) or long-term debt of the Company or the Company's subsidiaries on
a consolidated basis (other than changes not in excess of $5 million) or
any change which would constitute a Material Adverse Effect, otherwise than
as set forth or contemplated in the Prospectus, the effect of which, in any
such case described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(k) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the Exchange;
(iii) a general moratorium on commercial banking activities declared by
either Federal or New York or Michigan State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this Clause (iv) in the judgment of
the Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being delivered at such
Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(l) The Shares to be sold by the Selling Shareholders at such Time of
Delivery shall have been duly listed, subject to notice of issuance, on the
Exchange;
23
(m) The Company has obtained and delivered to the Underwriters
executed copies of an agreement referred to in Subsection 1(b)(vi) hereof
from its directors, its executive officers and shareholders representing
93.3% of the outstanding shares of Stock and Class B Stock as of the date
hereof to the effect set forth in Annex III hereto in form and substance
satisfactory to you;
(n) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Shareholders shall have furnished or
caused to be furnished to you at such Time of Delivery Certificates of
officers of the Company and of the Selling Shareholders, respectively,
satisfactory to you as to the accuracy of the representations and
warranties of the Company and the Selling Shareholders, respectively,
herein at and as of such Time of Delivery, as to the performance by the
Company and the Selling Shareholders of all of their respective obligations
hereunder to be performed at or prior to such Time of Delivery, and as to
such other matters as you may reasonably request, and the Company shall
have furnished or caused to be furnished Certificates as to the matters set
forth in subsections (a) and (f) of this Section, and as to such other
matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
(b) Each of the Selling Shareholders will indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or
24
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Selling Shareholder,
whether directly or through the Attorneys-in-Fact, expressly for use
therein; and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that such Selling Shareholder shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through ▇▇▇▇▇▇▇,
Sachs & Co. expressly for use therein.
(c) Each Underwriter will indemnify and hold harmless the Company and
each Selling Shareholder against any losses, claims, damages or liabilities
to which the Company or such Selling Shareholder may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by
such Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein;
and will reimburse the Company and each Selling Shareholder for any legal
or other expenses reasonably incurred by the Company or such Selling
Shareholder in connection with investigating or defending any such action
or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel appointed by the indemnifying party with the consent of such
indemnified party (provided that such counsel shall not, except with the
consent of the indemnified party, be counsel
25
to the indemnifying party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party under
such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise
or judgment (i) includes an unconditional release of the indemnified party
from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
the Selling Shareholders on the one hand and the Underwriters on the other
from the offering of the Shares. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection
(d) above, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Selling Shareholders on the one hand
and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Selling Shareholders 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 of the Shares purchased under this Agreement (before deducting
expenses) received by the Company and the Selling Shareholders bear to the
total underwriting discounts and commissions received by the Underwriters
with respect to the Shares purchased under this Agreement, in each case as
set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company or the Selling Shareholders on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company, each of the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (e) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a
26
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (e) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Shareholders under
this Section 8 shall be in addition to any liability which the Company and
the respective Selling Shareholders may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company
(including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company) and to
each person, if any, who controls the Company or any Selling Shareholder
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Selling Shareholders shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Selling Shareholders
that you have so arranged for the purchase of such Shares, or the Selling
Shareholders notify you that they have so arranged for the purchase of such
Shares, you or the Selling Shareholders shall have the right to postpone such
Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Selling Shareholders as provided in subsection (a) above, the aggregate
number of such Shares which remains
27
unpurchased does not exceed one-eleventh of the aggregate number of all of
the Shares to be purchased at such Time of Delivery, then the Selling
Shareholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed
to purchase hereunder at such Time of Delivery and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on
the number of Shares which such Underwriter agreed to purchase hereunder)
of the Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Selling Shareholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at such Time of
Delivery, or if the Selling Shareholders shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to the Second Time of Delivery, the obligations
of the Underwriters to purchase and of the Selling Shareholders to sell the
Optional Shares) shall thereupon terminate, without liability on the part
of any non-defaulting Underwriter or the Company or the Selling
Shareholders, except that the parties will remain liable for their
respective expenses as provided in Section 6 hereof and for the indemnity
and contribution agreements contained in Section 8 hereof; provided,
however nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Shareholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Shareholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Shareholder, and shall survive delivery of and payment for the
Shares.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, neither the Company nor the Selling Shareholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Selling Shareholders as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company and the Selling Shareholders shall then
be under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
28
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of you as the
representatives; and in all dealings with any Selling Shareholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Shareholder made or given by any
or all of the Attorneys-in-Fact for such Selling Shareholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of ▇▇▇▇▇▇▇, Sachs &
Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration
Department; if to any Selling Shareholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Shareholder at its
address set forth in Schedule II hereto; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8(e) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire or telex
constituting such Questionnaire, which address will be supplied to the Company
or the Selling Shareholders by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Shareholders and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Shareholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us ten (10) counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding
29
agreement among each of the Underwriters, the Company and each of the Selling
Shareholders. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters (U.S. Version), the form of which shall be
submitted to the Company and the Selling Shareholders for examination upon
request, but without warranty on your part as to the authority of the signers
thereof.
30
Any person executing and delivering this Agreement as Attorney-in-Fact for a
Selling Shareholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Shareholder pursuant to a validly existing and
binding Power of Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
Steelcase Inc.
By: ________________________________________
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Trust
The Wege Foundation
▇▇▇▇▇ ▇. ▇▇▇▇ Charitable Remainder Trust
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust
▇▇▇▇ ▇. Hunting Charitable Remainder
▇▇▇▇▇▇▇▇ # ▇
▇▇▇▇ ▇. Hunting Charitable Remainder
▇▇▇▇▇▇▇▇ # ▇
▇▇▇▇ ▇. Hunting Charitable Remainder
▇▇▇▇▇▇▇▇ # ▇
▇▇▇▇ ▇. Hunting Charitable Remainder
▇▇▇▇▇▇▇▇ # ▇
▇▇▇▇ ▇. Hunting Charitable Remainder
▇▇▇▇▇▇▇▇ # ▇
▇▇▇▇ ▇. Hunting Charitable Remainder
Unitrust # 6
▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ Olds Trustee
S. ▇▇▇▇▇▇▇ ▇▇▇▇ Revocable Trust
▇▇▇▇▇▇▇▇ Partners, L.P.
▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust
By: ________________________________
Name:
As Attorney-in-Fact acting on behalf of
each of the Selling Shareholders named
in Schedule II to this Agreement.
31
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: _______________________________
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
On behalf of each of the Underwriters
32
SCHEDULE I
NUMBER OF
OPTIONAL
SHARES TO BE
TOTAL NUMBER PURCHASED IF
OF FIRM MAXIMUM
SHARES TO BE OPTION
PURCHASED EXERCISED
------------ ------------
▇▇▇▇▇▇▇, Sachs & Co...............
Bear, ▇▇▇▇▇▇▇ & Co. Inc...........
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.
▇▇▇▇▇ ▇▇▇▇▇▇ Inc..................
------------ ------------
Total.........................
============ ============
33
SCHEDULE II
NUMBER OF OPTIONAL
TOTAL NUMBER OF FIRM SHARES TO BE SOLD IF
SHARES MAXIMUM OPTION
NAME OF SELLING SHAREHOLDERS TO BE SOLD EXERCISED
---------------------------- -------------------- --------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Trust (a)............................... 1,391,235 208,685
The Wege Foundation (a)................................... 807,304 121,096
▇▇▇▇▇ ▇. ▇▇▇▇ Charitable Remainder Trust (a).............. 3,921,948 588,292
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust (b)................................ 643,757 96,563
▇▇▇▇ ▇. Hunting Charitable Remainder ▇▇▇▇▇▇▇▇ # ▇ (c)..... 1,908,557 286,283
▇▇▇▇ ▇. Hunting Charitable Remainder ▇▇▇▇▇▇▇▇ # ▇ (c)..... 195,756 29,364
▇▇▇▇ ▇. Hunting Charitable Remainder ▇▇▇▇▇▇▇▇ # ▇ (c)..... 195,756 29,364
▇▇▇▇ ▇. Hunting Charitable Remainder ▇▇▇▇▇▇▇▇ # ▇ (c)..... 195,756 29,364
▇▇▇▇ ▇. Hunting Charitable Remainder ▇▇▇▇▇▇▇▇ # ▇ (c)..... 195,756 29,364
▇▇▇▇ ▇. Hunting Charitable Remainder ▇▇▇▇▇▇▇▇ # ▇ (c)..... 195,756 29,364
▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ (b).................................. 1,217 183
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (b)..................................... 4,870 730
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (b)....................................... 5,844 876
▇▇▇ ▇▇▇▇▇▇▇▇ Olds Trustee (b)............................. 48,696 7,304
S. ▇▇▇▇▇▇▇ ▇▇▇▇ Revocable Trust (b)....................... 4,870 730
▇▇▇▇▇▇▇▇ Partners, L.P. (b)............................... 1,948 292
▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (b).......................... 487 73
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust (b)................................ 487 73
-------------------- -------------------
Total............................................ 9,720,000 1,458,000
==================== ===================
(a) This Selling Shareholder is represented by ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and has appointed ▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ and, each of them, as the Attorneys-in-Fact for such
Selling Shareholder.
(b) This Selling Shareholder is represented by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & Kotel and has appointed ▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇, and each of them, as the Attorneys-in-Fact for such
Selling Shareholder.
(c) This Selling Shareholder is represented by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.,
Curtis, Mallet, Prevost-Colt & Mosle and has appointed ▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇, and each of them, as the Attorneys-in-
Fact for such Selling Shareholder.
34
ANNEX I
Pursuant to Section 7(i) of the Underwriting Agreement, the accountants shall
furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial forecasts
and/or pro forma financial information) examined by them and included in the
Prospectus or the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published rules and regulations thereunder; and, if applicable, they
have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus as indicated
in their reports thereon copies of which have been separately furnished to
the Representatives; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for financial
and accounting matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply as to
form in all material respects with the applicable accounting requirements of
the Act and the related published rules and regulations, nothing came to
their attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for
the five most recent fiscal years included in the Prospectus agrees with the
corresponding amounts (after restatements where applicable) in the audited
consolidated financial statements for such five fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis
of
limited procedures specified in such letter nothing came to their attention
as a result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Items 301, 302, 402 and 503(d), respectively, of
Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information referred
to below, a reading of the latest available interim financial statements of
the Company and its subsidiaries, inspection of the minute books of the
Company and its subsidiaries since the date of the latest audited financial
statements included in the Prospectus, inquiries of officials of the Company
and its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations, or (ii) any material modifications should be made
to the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus for them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in
the unaudited consolidated financial statements from which such data and
items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements
included in the Prospectus;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived any unaudited condensed financial
statements referred to in Clause (A) and any unaudited income statement
data and balance sheet items included in the Prospectus and referred to in
Clause (B) were not determined on a basis substantially consistent with
the basis for the audited consolidated financial statements included in
the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Act
and the published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical amounts in
the compilation of those statements;
(E) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital
stock
2
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest financial statements included in the Prospectus)
or any increase in the consolidated long-term debt or short-term debt of
the Company and its subsidiaries, or any decreases in consolidated net
current assets or shareholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the latest
balance sheet included in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest financial statements
included in the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or operating profit
or the total or per share amounts of consolidated net income or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each case
for decreases or increases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (iii) and
(vi) above, they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives, which are derived from the
general accounting records of the Company and its subsidiaries, which appear
in the Prospectus, or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives, and have compared
certain of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found them to
be in agreement.
3
ANNEX I(a)&(b)
[Executed accountant's comfort letter, dated the effective date, and form of
bring down comfort letter]
4
ANNEX II
[Form of opinions of regular and corporate counsel for the Company and counsel
for the Selling Shareholders]
5
