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EXHIBIT 1.2
22,500,000 SHARES
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
COMMON STOCK ($.01 PAR VALUE)
SUBSCRIPTION AGREEMENT
London, England
December __, 1997
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
XXXXXXX XXXXX INTERNATIONAL
X.X. XXXXXX SECURITIES LTD.
XXXXX XXXXXX INC.
c/o: Credit Suisse First Boston (Europe) Limited ("CSFBL")
Xxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx X00 0XX
Dear Sirs:
1. Introductory. Dollar Thrifty Automotive Group Inc., a Delaware
corporation ("Company"), proposes to issue and sell to the several Managers
named in Schedule A hereto ("Managers"), 375,000 shares of its Common Stock
($0.01 par value) ("Securities") and Chrysler Corporation, a Delaware
Corporation ("Chrysler") proposes to sell to the Managers 3,000,000 outstanding
shares of the Securities ("International Offering") (the aggregate of such
3,375,000 shares of Securities being referred to as "International Firm
Securities").
It is understood that the Company and Chrysler are concurrently entering
into an Underwriting Agreement, dated the date hereof ("U.S. Underwriting
Agreement"), with certain United States underwriters listed in Schedule A
thereto (the "U.S. Underwriters"), for whom Credit Suisse First Boston
Corporation ("CSFBC"), Xxxxxxx, Sachs & Co., X.X. Xxxxxx Securities Inc. and
Xxxxx Xxxxxx Inc. are acting as representatives ("Representatives"), relating
to the concurrent offering and sale of 19,125,000 shares of Securities ("U.S.
Firm Securities") in the United States and Canada ("U.S. Offering").
In addition, the Company proposes to issue and sell to the U.S.
Underwriters and to the Managers, at the option of the U.S. Underwriters and
the Managers, an aggregate of not more than 3,375,000 additional shares of
Securities ("Optional Securities"). The U.S. Firm Securities and the Optional
Securities purchased by the U.S. Underwriters are hereinafter called the "U.S.
Securities"; the International Firm Securities and the Optional Securities
purchased by the Managers are hereinafter called the "International
Securities"; the U.S. Firm Securities and the International Firm Securities are
hereinafter called the "Firm Securities". The U.S. Securities and the
International Securities are collectively referred to as the "Offered
Securities". To provide for the coordination of their activities, the U.S.
Underwriters and the Managers have entered into an Agreement Between U.S.
Underwriters and Managers that permits them, among other things, to sell the
Offered Securities to each other for purposes of resale.
2. Representations and Warranties of the Company. (a) The Company
represents and warrants to, and agrees with, the several Managers and Chrysler
that:
(i) A registration statement (No. 333-39661) relating to the Offered
Securities, including a form of prospectus relating to the U.S.
Securities and a form of prospectus relating to the International
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Securities has been filed with the Securities and Exchange Commission
("Commission") and either (A) has been declared effective under the
Securities Act of 1933 ("Act") and is not proposed to be amended or (B)
is proposed to be amended by amendment or post-effective amendment. If
such registration statement (the "initial registration statement") has
been declared effective, either (i) an additional registration statement
(the "additional registration statement") relating to the Offered
Securities may have been filed with the Commission pursuant to Rule
462(b) ("Rule 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (ii) such an additional registration statement is proposed
to be filed with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration statement
has been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("Rule 462(c)") under the
Act or, in the case of the additional registration statement, Rule
462(b). For purposes of this Agreement, "Effective Time" with respect to
the initial registration statement or, if filed prior to the execution
and delivery of this Agreement, the additional registration statement
means (a) if the Company has advised CSFBL that it does not propose to
amend such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (b) if the Company has
advised CSFBL that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by
the Commission. If an additional registration statement has not been
filed prior to the execution and delivery of this Agreement but the
Company has advised CSFBL that it proposes to file one, "Effective Time"
with respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "Effective Date" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
information contained in the additional registration statement (if any)
and deemed to be a part of the initial registration statement as of the
Effective Time of the additional registration statement pursuant to the
General Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("Rule
430A(b)") under the Act, is hereinafter referred to as the "Initial
Registration Statement". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule 430A(b),
is hereinafter referred to as the "Additional Registration Statement".
The Initial Registration Statement and the Additional Registration
Statement are hereinafter referred to collectively as the "Registration
Statements" and individually as a "Registration Statement". The form of
prospectus relating to the U.S. Securities and the form of prospectus
relating to the International Securities, each as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)")
under the Act or (if no such filing is required) as included in the
Registration Statement, are hereinafter referred to as the "U.S.
Prospectus" and the "International Prospectus", respectively, and
collectively as the "Prospectuses". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the
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statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed, or will conform, in all material respects to the requirements
of the Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (C) on
the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of each of the
Prospectuses pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which
the Prospectuses are included, each Registration Statement and each of
the Prospectuses will conform, in all material respects to the
requirements of the Act and the Rules and Regulations, and none of such
documents includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein (in the case
of the Prospectuses, in light of the circumstances under which they were
made) not misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this Agreement:
on the Effective Date of the Initial Registration Statement, the Initial
Registration Statement and each of the Prospectuses will conform in all
material respects to the requirements of the Act and the Rules and
Regulations, none of such documents will include any untrue statement of
a material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein (in the case
of the Prospectuses, in light of the circumstances under which they were
made) not misleading, and no Additional Registration Statement has been
or will be filed. The two preceding sentences do not apply to statements
in or omissions from a Registration Statement or either of the
Prospectuses based upon written information furnished to the Company by
any Manager through CSFBL or by any U.S. Underwriter through the U.S.
Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(b) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectuses; and the Company is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification.
(iv) Each subsidiary of the Company listed in Schedule B hereto
(individually, a "Subsidiary" and collectively, the "Subsidiaries") has
been duly incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectuses; and each Subsidiary of the
Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a material adverse
effect upon the condition (financial or other), earnings, prospects,
business, properties or results of operations of the Company and its
Subsidiaries taken as a whole; all of the issued and outstanding capital
stock of each Subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and, except for liens
and encumbrances pursuant to the Revolving Credit Facility (as defined in
the Prospectuses), the capital stock of each Subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this
Agreement and the U.S. Underwriting Agreement on each Closing Date (as
defined below), such Offered Securities will have been, validly issued,
fully paid and nonassessable and will conform to the description thereof
contained in the Prospectuses; and Chrysler has no preemptive rights with
respect to the Securities.
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(vi) Except as disclosed in the Prospectuses, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
Chrysler or any Manager or U.S. Underwriter for a brokerage commission,
finder's fee or other like payment in connection with this offering or
the U.S. Offering.
(vii) The Offered Securities have been approved for listing on The
New York Stock Exchange (the "Exchange") subject to notice of issuance.
(viii) No consent, approval, authorization, waiver or order of, or
filing with, any lessor, governmental agency or body or any court or
other entity is required for the consummation of the transactions
contemplated by this Agreement or the U.S. Underwriting Agreement in
connection with the issuance and sale of the Offered Securities, except
(A) such as have been obtained and made under the Act and such as may be
required under securities laws of the United States in connection with
the purchase and distribution of the Offered Securities by the U.S.
Underwriters and the Managers, and (B) the listing of the Offered
Securities on the Exchange.
(ix) The execution, delivery and performance by the Company of this
Agreement and the U.S. Underwriting Agreement, and the issuance and sale
of the Offered Securities, will not (A) result in a breach or violation
of any of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Company
or any Subsidiary of the Company or any of their properties, or any
agreement, mortgage, lease, instrument or arrangement to which the
Company or any such Subsidiary is a party or by which the Company or any
such Subsidiary is bound or to which any of the properties of the Company
or any such Subsidiary is subject, or any governmental franchise, license
or permit heretofore issued to the Company or any of its Subsidiaries, in
each case, except for those breaches, violations or defaults that,
individually or in the aggregate, would not have a material adverse
effect on the condition (financial or other), earnings, prospects,
business, properties or results of operations of the Company and its
Subsidiaries taken as a whole or (B) violate or conflict with the charter
or by-laws of the Company or any such Subsidiary.
(x) This Agreement and the U.S. Underwriting Agreement have been
duly authorized, executed and delivered by or on behalf of the Company,
and each such agreement represents a valid and binding obligation of the
Company enforceable in accordance with its terms.
(xi) Except for (A) liens on the assets of the Company and its
subsidiaries securing indebtedness under the Revolving Credit Facility,
the Liquidity Facility, the New Medium Term Notes, and the Chrysler Credit
Support Agreement (as such terms are defined in the Prospectuses), and (B)
liens on certain shuttle buses of Dollar Rent A Car Systems, Inc.
("Dollar") pursuant to a Loan Agreement dated April 24, 1991, as amended,
between Dollar and Chrysler Financial Corporation ("CFC"), the Company and
its Subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them as necessary to conduct
their businesses, in each case free from liens, encumbrances and defects
that would materially affect the value thereof or materially interfere
with the use made or to be made thereof by them; and except as disclosed
in the Prospectuses, the Company and its Subsidiaries hold any leased real
or personal property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof by
them.
(xii) The Company and its Subsidiaries (A) possess adequate
certificates, authorities, licenses or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them, except where the failure to possess such certificate,
authority, license or permit, individually or in the aggregate, would not
have a material adverse effect on the condition (financial or other),
earnings, prospects, business, properties or results of operations of the
Company and its Subsidiaries taken as a whole, and (B) have not received
any notice of proceedings relating to the revocation or modification of
any such certificate, authority, license or permit that, if determined
adversely to the Company or any of its Subsidiaries, would individually
or in the aggregate have a material adverse effect on the Company and its
Subsidiaries taken as a whole.
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(xiii) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent that
would have a material adverse effect on the Company and its Subsidiaries
taken as a whole.
(xiv) The Company and its Subsidiaries (A) own, possess or can
acquire on reasonable terms adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively, "intellectual
property rights") necessary to conduct the businesses now operated by
them, or presently employed by them, except where the failure to have
such intellectual property rights, individually or in the aggregate,
would not have a material adverse effect on the condition (financial or
other), earnings, prospects, business, properties or results of
operations of the Company and its Subsidiaries taken as a whole, and (B)
have not received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights that,
if determined adversely to the Company or any of its Subsidiaries, would
individually or in the aggregate have a material adverse effect on the
Company and its Subsidiaries taken as a whole.
(xv) Except as disclosed in the Prospectuses, neither the Company
nor any of its Subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "environmental laws"), owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating
to any environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a material adverse
effect on the Company and its Subsidiaries taken as a whole; and the
Company is not aware of any pending investigation which might lead to
such a claim.
(xvi) Except as disclosed in the Prospectuses, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its Subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its Subsidiaries, would
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries taken as a whole, or would
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement or the U.S. Underwriting Agreement, or
which are otherwise material in the context of the sale of the Offered
Securities; and, to the Company's knowledge, no such actions, suits or
proceedings are threatened or contemplated.
(xvii) There is no document or contract of a character required to
be described in each Registration Statement or the Prospectuses, or to be
filed as an exhibit to each Registration Statement, that is not described
or filed as required.
(xviii) The financial statements included in each Registration
Statement and the Prospectuses present fairly in all material respects
the financial position of the Company and its consolidated subsidiaries
as of the dates shown and their results of operations and cash flows for
the periods shown, in conformity with the generally accepted accounting
principles in the United States ("U.S. GAAP") applied on a consistent
basis, and Schedule II included in each Registration Statement presents
fairly the information required to be stated therein; and the assumptions
used in preparing the pro forma financial statements included in each
Registration Statement and the Prospectuses provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those adjustments
to the corresponding historical financial statement amounts. Such
financial statements comply in all material respects with the
requirements of the Act and the rules and regulations applicable to a
registration statement on Form S-1. Deloitte & Touche LLP, who have
certified certain financial statements of the Company and its
subsidiaries included in each Registration Statement and the
Prospectuses, as amended or supplemented, are independent public
accountants with respect to the Company and its subsidiaries as required
by the Act and the Rules and Regulations.
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(xix) Except as disclosed in the Prospectuses, since the date of the
latest audited financial statements included in the Prospectuses there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its Subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectuses, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(xx) Each of the Company and its Subsidiaries is insured against
(or, as described in the Prospectuses, has self-insured retention levels
for) such losses and risks and in such amounts as are prudent and
customary in the businesses in which the Company and its Subsidiaries are
engaged. Neither the Company nor any of its Subsidiaries has any reason
to believe that it will not be able to renew its existing insurance
coverage from similar insurers as may be necessary to continue its
business.
(xxi) Except as disclosed in the Registration Statement and as shall
be disclosed in the Prospectuses, there are no business relationships or
related party transactions of the nature described in Item 404 of
Regulation S-K of the Commission involving the Company or any other
persons referred to in such Item 404.
(xxii) The Company is not and, after giving effect to the offering
and sale of the Offered Securities, will not be an "investment company"
as defined in the Investment Company Act of 1940, as amended.
(b) Chrysler represents and warrants to, and agrees with, the several
Managers and the Company that:
(i) Chrysler has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to enter into agreements and
conduct business with the Company as described in the Prospectuses; and
Chrysler is the sole registered and beneficial owner (as the term
"beneficial owner" is used in Rule 13d-3 under the Securities Exchange
Act of 1934, as amended) of all of the capital stock of the Company and
owns (and has full corporate power and authority to own) such stock free
from any adverse claim (as defined in the Uniform Commercial Code as
adopted in the State of New York), lien or restriction on transfer.
(ii) Chrysler has and on each Closing Date hereinafter mentioned
will have valid and unencumbered title to the Offered Securities to be
delivered by Chrysler on such Closing Date and full right, power and
authority to enter into this Agreement and the U.S. Underwriting
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by Chrysler on such Closing Date hereunder;
and upon the delivery of and payment for the Offered Securities on each
Closing Date hereunder the several Managers and U.S. Underwriters will
acquire valid and unencumbered title to the Offered Securities to be
delivered by Chrysler on such Closing Date.
(iii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the Rules and Regulations and did not include
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed,
or will conform, in all material respects to the requirements of the Act
and the Rules and Regulations and did not include, or will not include,
any untrue statement of a material fact and did not omit, or will not
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (C) on the
date of this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectuses
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
Prospectuses are included, each Registration Statement and each of the
Prospectuses will
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conform, in all material respects to the requirements of the Act and the
Rules and Regulations, and none of such documents includes, or will
include, any untrue statement of a material fact or omits, or will omit,
to state any material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectuses, in light of
the circumstances under which they were made) not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement: on the Effective Date of the
Initial Registration Statement, the Initial Registration Statement and
each of the Prospectuses will conform in all material respects to the
requirements of the Act and the Rules and Regulations, none of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectuses, in light of the circumstances under which they were made)
not misleading, and no Additional Registration Statement has been or will
be filed. The two preceding sentences do not apply to statements in or
omissions from a Registration Statement or either of the Prospectuses
based upon written information furnished to the Company by any Manager
through CSFBL or by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b).
(iv) Except as disclosed in the Prospectuses, there are no
contracts, agreements or understandings between Chrysler and any person
that would give rise to a valid claim against the Company or any
Underwriter or Manager for a brokerage commission, finder's fee or other
like payment in connection with the U.S. Offering or the International
Offering.
(v) The execution, delivery and performance by Chrysler of this
Agreement and the U.S. Underwriting Agreement and the consummation of the
transactions herein and therein contemplated on the part of Chrysler will
not (A) result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over Chrysler, CFC or Chrysler Insurance
Corporation ("CIC") or any of their respective properties, or any
agreement, mortgage, lease or arrangement to which Chrysler, CFC or CIC is
a party or by which Chrysler, CFC or CIC is bound or to which any of the
properties of Chrysler, CFC or CIC is subject, except for those breaches,
violations or defaults that, individually or in the aggregate, would not
have a material adverse effect on the condition (financial or other),
earnings, prospects, business or results of operations of the Company and
its Subsidiaries taken as a whole, or (B) violate or conflict with the
charter or by-laws of Chrysler, CFC or CIC.
(vi) Chrysler has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise, any
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Offered Securities and has not
effected any sales of any security of the Company which, if effected by
the Company, would be required to be disclosed in response to Item 701 of
Regulation S-K promulgated under the Act.
(vii) No consent, approval, authorization, waiver or order of, or
filing with, any governmental agency or body or any court is required to
be obtained or made by Chrysler for the consummation of the transactions
contemplated by this Agreement or the U.S. Underwriting Agreement in
connection with the sale of the Offered Securities by Chrysler, except
such as have been obtained and made under the Act and such as may be
required under state securities laws.
(viii) This Agreement and the U.S. Underwriting Agreement have been
duly authorized, executed and delivered by or on behalf of Chrysler, and
each such agreement represents a valid and binding obligation of Chrysler
enforceable in accordance with its terms.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and Chrysler agree,
severally and jointly, to sell to the Managers, and the Managers agree,
severally and not jointly, to purchase
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from the Company and Chrysler, at a purchase price of U.S.$ per share,
the numbers of shares of International Firm Securities set forth below the
caption "Company" or "Chrysler", as the case may be, and opposite the name of
such Manager in Schedule A hereto.
The Company and Chrysler will deliver the International Firm Securities to
CSFBC for the accounts of the Managers, against payment of the purchase price
in U.S. dollars in Federal (same day) funds by wire transfer to accounts at
banks selected by the Company and Chrysler and acceptable to CSFBL for the
account of Dollar Thrifty Automotive Group, Inc. in the case of 375,000 shares
of International Firm Securities and Chrysler in the case of 3,000,000 shares
of International Firm Securities at the office of Xxxxx, Xxxxx & Xxxxx, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, at 9:00 A.M., New York time, on December ,
1997, or at such other time not later than seven full business days thereafter
as CSFBL, the Company and Chrysler determine, such time being herein referred
to as the "First Closing Date". For purposes of Rule 15c6-1 under the Exchange
Act, the First Closing Date (if later than the otherwise applicable settlement
date) shall be the settlement date for payment of funds and delivery of
securities for all the Offered Securities sold pursuant to the U.S. Offering
and the International Offering. The certificates for the International Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFBL requests and will be made available for
checking and packaging at the above office of Xxxxx, Xxxxx & Xxxxx, at least 24
hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and
Chrysler from time to time not more than 30 days subsequent to the date of the
Prospectuses, the Managers and the U.S. Underwriters may purchase all or less
than all of the Optional Securities at the purchase price per Security to be
paid for the International Firm Securities. The Optional Securities to be
purchased by the Managers on any Optional Closing Date (as hereinafter defined)
shall be in the same proportion to all the Optional Securities to be purchased
by the Managers and U.S. Underwriters on such Optional Closing Date as the
International Firm Securities bear to all the Firm Securities. The Company
agrees to sell to the Managers such Optional Securities and the Managers agree,
severally and not jointly, to purchase such Optional Securities. Such
International Optional Securities shall be purchased for the account of each
Manager in the same proportion as the number of shares of International Firm
Securities set forth opposite such Manager's name bears to the total number of
shares of International Firm Securities (subject to adjustment by CSFBC to
eliminate fractions) and may be purchased by the Managers only for the purpose
of covering over-allotments made in connection with the sale of the
International Firm Securities. No Optional Securities shall be sold or
delivered unless the International Firm Securities and the U.S. Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFBC on behalf of the Managers and the
U.S. Underwriters to the Company and Chrysler. It is understood that CSFBC is
authorized to make payment for and accept delivery of such Optional Securities
on behalf of the U.S. Underwriters and Managers pursuant to the terms of
CSFBC's instructions to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver
the Optional Securities being purchased on each Optional Closing Date to CSFBL
for the accounts of the several Managers, against payment of the purchase price
therefor in Federal (same day) funds by wire transfer to an account at a bank
selected by the Company and acceptable to CSFBC for the account of Dollar
Thrifty Automotive Group, Inc., at the above office of Xxxxx, Xxxxx & Xxxxx.
The certificates for the Optional Securities will be in definitive form, in
such denominations and registered in such names as CSFBL requests upon
reasonable notice prior to such Optional Closing Date and will be made
available for checking and packaging at the above office of Xxxxx, Xxxxx &
Xxxxx, at a reasonable time in advance of such Optional Closing Date.
The Company will pay to the Managers as aggregate compensation for their
commitments hereunder and for their services in connection with the purchase of
the International Securities and the management of the offering thereof, if the
sale and delivery of the International Securities to the Managers provided
herein is consummated, an amount equal to U.S. $ per International
Security purchased, which may be divided among the Managers in such
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proportions as they may determine. Such payment will be made on the First
Closing Date in the case of the International Firm Securities and on each
Optional Closing Date in the case of the International Optional Securities sold
to the Manager on such Closing Date, in each case by way of deduction by the
Managers of said amount from the purchase price for the International
Securities referred to above.
4. Offering by Managers. It is understood that the several Managers
propose to offer the International Securities for sale to the public as set
forth in the International Prospectus.
In connection with the distribution of the International Securities, the
Managers, through a stabilizing manager, may over-allot or effect transactions
on any exchange, in any over-the-counter market or otherwise which stabilize or
maintain the market prices of the International Securities at levels other than
those which might otherwise prevail, but in such event and in relation thereto,
the Managers will act for themselves and not as agents of the Company, and any
loss resulting from over-allotment and stabilization will be borne, and any
profit arising therefrom will be beneficially retained, by the Managers. Such
stabilizing, if commenced, may be discontinued at any time.
5. Certain Agreements of the Company and Chrysler. The Company and, to
the extent stated herein, Chrysler, agree with the several Managers that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file each of the Prospectuses with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFBL, subparagraph (4)) of Rule 424(b) not later than the earlier of
(A) the second business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the Effective Date of
the Initial Registration Statement. The Company will advise CSFBL
promptly of any such filing pursuant to Rule 424(b). If the Effective
Time of the Initial Registration Statement is prior to the execution and
delivery of this Agreement and an additional registration statement is
necessary to register a portion of the Offered Securities under the Act
but the Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement or,
if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior to
10:00 P.M., New York time, on the date of this Agreement or, if earlier,
on or prior to the time either Prospectus is printed and distributed to
any Manager or U.S. Underwriter, or will make such filing at such later
date as shall have been consented to by CSFBL.
(b) The Company will advise CSFBL promptly of any proposal to amend
or supplement the initial or any additional registration statement as
filed or either of the related prospectuses or the Initial Registration
Statement, the Additional Registration Statement (if any) or either of
the Prospectuses and will not effect such amendment or supplementation
without CSFBL's prior consent; and the Company will also advise CSFBL
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or either of the Prospectuses and of the institution by the
Commission of any stop order proceedings in respect of a Registration
Statement and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any U.S. Underwriter, Manager or dealer, any event occurs as a
result of which either or both of the Prospectuses as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend either or both of
the Prospectuses to comply with the Act, the Company will promptly notify
CSFBL of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither CSFBL's consent to, nor the U.S. Underwriters'
delivery of, any such amendment or supplement shall constitute a waiver
of any of the conditions set forth in Section 6.
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(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional
Registration Statement) which will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth fiscal
quarter following the fiscal quarter that includes such Effective Date,
except that, if such fourth fiscal quarter is the last quarter of the
Company's fiscal year, "Availability Date" means the 90th day after the
end of such fourth fiscal quarter.
(e) The Company will furnish to the Managers copies of the
Registration Statement (five of which will be signed and will include all
exhibits), each preliminary prospectus relating to the International
Securities, and until completion of the distribution of the International
Securities as determined by CSFBL, the International Prospectus and all
amendments and supplements to such documents, in each case in such
quantities as CSFBL reasonably requests. The International Prospectus
shall be so furnished on or prior to 3:00 P.M., New York time, on the
business day following the later of the execution and delivery of this
Agreement or the Effective Time of the Initial Registration Statement.
All other such documents shall be so furnished as soon as available. The
Company will pay the expenses of printing and distributing to the
Managers all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBL
reasonably designates and will continue such qualifications in effect so
long as required for the distribution.
(g) During the period of three years hereafter, the Company will
furnish to the Managers, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such year;
and the Company will furnish to the Managers (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Exchange Act or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as CSFBL may reasonably request in writing.
(h) The Company and Chrysler agree with the several Managers that
the Company will pay all expenses incident to the performance of the
obligations of the Company under this Agreement, for any filing fees and
other expenses (including fees and disbursements of counsel) in
connection with qualification of the Offered Securities for sale under
the laws of such jurisdictions as CSFBL reasonably designates (except
that neither the Company nor Chrysler will be obligated to qualify to do
business as a foreign corporation in any state in which it is not so
qualified or to file a general consent to service of process in any
jurisdiction) and the printing of memoranda relating thereto, for any
fees charged by investment rating agencies for the rating of the Offered
Securities, for the filing fee incidental to, and the reasonable fees and
disbursements of counsel to the U.S. Underwriters in connection with, the
review by the National Association of Securities Dealers, Inc. of the
Offered Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities, for any transfer taxes on the sale by Chrysler of the Offered
Securities to the Managers and for expenses incurred in distributing
preliminary prospectuses and the Prospectuses (including any amendments
and supplements thereto) to the Managers.
(i) For a period of 180 days after the date of the initial public
offering of the Offered Securities, the Company will not, without the
prior written consent of CSFBL, offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission
a registration statement under the Act relating to, any additional shares
of its Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
other than the Company's issuance and sale of Securities in accordance
with this Agreement and the U.S. Underwriting Agreement and pursuant to
grants under the Company's long-term incentive plan as contemplated in
the Prospectuses.
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(j) The Company agrees to use the net proceeds received by it from
its sale of Offered Securities pursuant to this Agreement and the U.S.
Underwriting Agreement in the manner specified in the Prospectuses under
the caption "Use of Proceeds".
(k) The Company agrees to use its best efforts to implement the
Commercial Paper Program and the Liquidity Facility (as such terms are
defined in the Prospectuses) during the first quarter of 1998.
6. Conditions of the Obligations of the Managers. The obligations of the
several Managers to purchase and pay for the International Firm Securities on
the First Closing Date and the Optional Securities to be purchased on each
Optional Closing Date will be subject to the accuracy of the representations
and warranties on the part of the Company and Chrysler herein, to the accuracy
of the statements of Company officers made pursuant to the provisions hereof,
to the performance by the Company and Chrysler of its obligations hereunder and
to the following additional conditions precedent:
(a) The Managers shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement
to be filed shortly prior to such Effective Time), of Deloitte & Touche
LLP in the agreed form.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have been consented to
by CSFBL. If the Effective Time of the Additional Registration Statement
(if any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or, if earlier, the time either
Prospectus is printed and distributed to any Manager or U.S. Underwriter,
or shall have occurred at such later date as shall have been consented to
by CSFBL. If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the U.S.
Prospectus shall have been filed with the Commission in accordance with
the Rules and Regulations. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Company or the Managers, shall be contemplated by
the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (A) a change in U.S. or international
financial, political or economic conditions or currency exchange rates or
exchange controls as would, in the judgment of CSFBL, be likely to
prejudice materially the success of the proposed issue, sale or
distribution of the International Securities, whether in the primary
market or in respect of dealings in the secondary market, or (B)(i) any
change, or any development or event involving a prospective change, in
the condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries taken as a whole which, in
the judgment of CSFBL, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the public offering or the
sale of and payment for the International Securities; (ii) any
downgrading in the rating of any debt securities of the Company or its
Subsidiaries by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating of any debt securities of the Company or its
Subsidiaries (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by U.S. Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by the United
States Congress or any other substantial national or international
calamity or emergency if, in the judgment
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of CSFBL, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
International Securities.
(d) The Managers shall have received an opinion, dated such Closing
Date, of Hall, Estill, Hardwick, Gable, Golden & Xxxxxx, counsel for the
Company, in the agreed form.
(e) The Managers shall have received an opinion, dated such Closing
Date, of Debevoise & Xxxxxxxx, counsel for Chrysler, in the agreed form.
(f) The Managers shall have received from Cleary, Gottlieb, Xxxxx &
Xxxxxxxx, counsel for the Managers, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statement, the Prospectuses and other related matters as the
Managers may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(g) The Managers shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that: the representations and warranties of the Company in this Agreement
are true and correct in all material respects; the Company has complied
in all material respects with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to such
Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that
purpose have been instituted, or to the Company's knowledge, are
threatened by the Commission; the Additional Registration Statement (if
any) satisfying the requirements of subparagraphs (1) and (3) of Rule
462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the
Act, prior to the time either Prospectus was printed and distributed to
any Manager or U.S. Underwriter; and, subsequent to the respective dates
of the most recent financial statements in the Prospectuses (exclusive of
any supplement thereto), there has been no material adverse change, nor
any development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries taken as a whole except as
set forth in or contemplated by the Prospectuses or as described in such
certificate.
(h) The Managers shall have received a letter, dated such Closing
Date, of Deloitte & Touche LLP that meets the requirements of
subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than three business days
prior to such Closing Date for the purposes of this subsection.
(i) On such Closing Date, the U.S. Underwriters shall have
purchased the U.S. Firm Securities or the Optional Securities to be
purchased by the U.S. Underwriters, as the case may be, pursuant to the
U.S. Underwriting Agreement.
(j) The National Association of Securities Dealers, Inc., upon
review of the terms of the underwriting arrangements for the public
offering of the Shares, shall have raised no objections thereto.
(k) The Shares shall have been listed on the NYSE, subject to
official notice of issuance.
(l) Prior to the First Closing Date, the Managers shall have
received from each of certain officers and directors of the Company
listed in Schedule C hereto a letter to the effect that, for a period of
180 days after the initial public offering of the Securities, such
officer or director will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any shares of Securities or
securities convertible into or exchangeable or exercisable for any shares
of Securities, or publicly disclose the intention to make any such offer,
sale, pledge or disposal without the prior written consent of CSFBL.
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(m) On or prior to the First Closing Date, (A) the New Medium Term
Notes (as defined in the Prospectuses) shall have been issued; (B) the
Revolving Credit Facility (as defined in the Prospectuses) shall be in
effect; and (C) the Chrysler Credit Support Agreement (as defined in the
Prospectuses) shall have been executed by the parties thereto.
Documents described as being "in the agreed form" are documents that are in the
forms which have been initialed for the purpose of identification by Cleary,
Gottlieb, Xxxxx & Xxxxxxxx, copies of which are held by the Company and CSFBL
with such changes as CSFBL may approve. The Company and Chrysler will furnish
the Managers with such conformed copies of such opinions, certificates, letters
and documents as the Managers reasonably request. CSFBL may in its sole
discretion waive on behalf of the Managers compliance with any conditions to
the obligations of the Managers hereunder, whether in respect of an Optional
Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company and Chrysler,
jointly and severally, will indemnify and hold harmless each Manager against
any losses, claims, damages or liabilities, joint or several, to which such
Manager may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, either of the Prospectuses, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectuses, in the light of the
circumstances under which they were made) not misleading, and will reimburse
each Manager for any legal or other expenses reasonably incurred by such
Manager in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company and Chrysler will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Manager through CSFBL
specifically for use therein, it being understood and agreed that the only
information furnished by any Manager consists of the information described as
such in subsection (b) below; and provided, further, (i) that the foregoing
indemnity with respect to either of the preliminary prospectuses related to the
Registration Statements shall not inure to the benefit of any Manager from whom
the person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof, if such person was not sent or given
a copy of either of the Prospectuses (or such Prospectus as supplemented) at or
prior to the confirmation of the sale of such Securities to such person in any
case where such delivery is required by the Act and the untrue statement or
omission of a material fact contained in such preliminary prospectus was
corrected in such Prospectus (or such Prospectus as supplemented); and (ii)
neither the Company nor Chrysler will be liable in respect of any settlement
of any pending or threatened action if such settlement is effected without its
prior written consent, which consent shall not be withheld unless such
settlement is unreasonable in light of the claims or actions against, and
defenses available to, the indemnified party.
(b) Each Manager will severally and not jointly indemnify and hold
harmless the Company and Chrysler, jointly and severally, against any losses,
claims, damages or liabilities to which the Company may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, either of the Prospectuses, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company and Chrysler by such Manager through CSFBL specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Manager consists of
the following information in the International Prospectus furnished on behalf
of each Manager: the names of the Managers on the cover of the International
Prospectus; the terms of the Agreement Between U.S. Underwriters and Managers
contained in paragraphs seven through nine under the caption "Subscription and
Sale"; the United Kingdom selling restrictions in paragraph ten under the
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caption "Subscription and Sale"; the list of Managers and the number of shares
being subscribed by each of the Managers listed under the caption "Subscription
and Sale"; and the concession and discount figures appearing in the sixth
paragraph under the caption "Subscription and Sale".
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. Notwithstanding
the indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right to
employ separate counsel (including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to
it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company and
Chrysler on the one hand and the Managers on the other from the offering of the
International Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and Chrysler on the one hand and the Managers
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the Company and
Chrysler on the one hand and the Managers on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
International Securities (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Managers. 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, Chrysler or the Managers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d), no
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Manager has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
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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 Managers'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company and Chrysler under this Section shall
be in addition to any liability which the Company and Chrysler may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Manager within the meaning of the Act; and the
obligations of the Managers under this Section shall be in addition to any
liability which the respective Managers may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company, to each
officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
8. Default of Managers. If any Manager or Managers default in their
obligations to purchase International Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of
International Securities that such defaulting Manager or Managers agreed but
failed to purchase does not exceed 10% of the total number of shares of
International Securities that the Managers are obligated to purchase on such
Closing Date, CSFBL may make arrangements satisfactory to the Company and
Chrysler for the purchase of such International Securities by other persons,
including any of the Managers, but if no such arrangements are made by such
Closing Date the non-defaulting Managers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the
International Securities that such defaulting Managers agreed but failed to
purchase on such Closing Date. If any Manager or Managers so default and the
aggregate number of shares of International Securities with respect to which
such default or defaults occur exceeds 10% of the total number of shares of
International Securities that the Managers are obligated to purchase on such
Closing Date and arrangements satisfactory to CSFBL, the Company and Chrysler
for the purchase of such International Securities by other persons are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Manager, the Company or Chrysler,
except as provided in Section 9 (provided that if such default occurs with
respect to Optional Securities after the First Closing Date, this Agreement
will not terminate as to the International Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement,
the term "Manager" includes any person substituted for a Manager under this
Section. Nothing herein will relieve a defaulting Manager from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
Chrysler, of the Company or its officers and of the several Managers set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made
by or on behalf of any Manager, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the International Securities. If this
Agreement is terminated pursuant to Section 8 or if for any reason the purchase
of the International Securities by the Managers is not consummated, Chrysler
and the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Company, Chrysler and the Managers pursuant to Section 7 shall remain in effect
and if any International Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the purchase of the International Securities
by the Managers is not consummated for any reason other than solely because of
the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in Section 6(c)(A) or clause (iii), (iv), or (v) of Section
6(c)(B), Chrysler and the Company will reimburse the Managers for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the International
Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Managers, will be mailed, delivered or telexed and confirmed to
CSFBL at Xxx Xxxxx Xxxxxx, Xxxxxx X00 0XX England, Attention: Company
Secretary, or, if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at 0000 Xxxx 00xx Xxxxxx, Xxxxx, Xxxxxxxx 00000, Attention:
Xx. Xxxxxx X. Xxxxxxxxxx, or, if sent to Chrysler, will be mailed, delivered or
telegraphed and confirmed to it at 0000 Xxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxx
00000-0000,
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Attention: Xxxxxxx X. Xxxxxxx, Esq.; provided, however, that any notice to a
Manager pursuant to Section 7 will be mailed, delivered or telexed and
confirmed to such Manager.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
12. Representation of Managers. CSFBL will act for the several Managers
in connection with this financing, and any action under this Agreement taken by
CSFBL will be binding upon all the Managers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company and Chrysler hereby submit to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
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If the foregoing is in accordance with the Managers' understanding of our
agreement, kindly sign and return to each of the Company and Chrysler one of
the counterparts hereof, whereupon it will become a binding agreement between
Chrysler, the Company and the several Managers in accordance with its terms.
Very truly yours,
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
By___________________________________
Name:
Title:
CHRYSLER CORPORATION
By___________________________________
Name:
Title:
The foregoing Subscription Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
XXXXXXX XXXXX INTERNATIONAL
X.X. XXXXXX SECURITIES LTD.
XXXXX XXXXXX INC.
As Managers
BY CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
By:________________________________
Name:
Title:
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SCHEDULE A
NUMBER OF INTERNATIONAL FIRM
SECURITIES TO BE SOLD BY
------------------------------
TOTAL NUMBER OF
INTERNATIONAL FIRM SECURITIES
MANAGER COMPANY CHRYSLER TO BE PURCHASED
------------------------------------------- -------------- -------------- --------------------
Credit Suisse First Boston (Europe) Limited
Xxxxxxx Sachs International
X.X. Xxxxxx Securities Ltd.
Xxxxx Xxxxxx Inc.
-------------- -------------- -------------
Total...................................... 3,375,000
============== ============== =============
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SCHEDULE B
SUBSIDIARIES OF THE COMPANY
Dollar Rent-A-Car Systems, Inc.
Thrifty Rent-A-Car System, Inc.
Rental Car Finance Corp.
Thrifty Canada, Ltd.
Pentastar Services, Inc.
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SCHEDULE C
OFFICERS AND DIRECTORS OF THE COMPANY SUBJECT TO LOCK-UP AGREEMENTS
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxxx
