DT Capital Trust
7.16% Convertible Preferred Securities
(liquidation preference $50 per
Convertible Preferred Security)
guaranteed to a limited extent by, and
convertible into Common Stock of,
DT Industries, Inc.
PLACEMENT AGREEMENT
June 12, 1997
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
1. Introductory. DT Capital Trust, a statutory business trust formed under
the laws of the State of Delaware (the "Trust") and DT Industries, Inc., a
Delaware corporation, as depositor of the Trust and as guarantor (the
"Guarantor"), propose, subject to the terms and conditions stated herein, that
the Trust issue and sell 1,400,000 of its 7.16% Convertible Preferred Securities
(liquidation preference $50 per Convertible Preferred Security) (the "Preferred
Securities") representing undivided beneficial ownership interests in the assets
of the Trust, guaranteed by the Guarantor as to the payment of distributions,
and as to payments on liquidation or redemption, to the extent set forth in a
guarantee agreement (the "Guarantee") between the Guarantor and The Bank of New
York, as trustee (the "Guarantee Trustee"). The Preferred Securities will be
sold on a private placement basis pursuant to an exemption under Section 4(2) of
the United States Securities Act of 1933 (the "Securities Act"). The proceeds of
the sale by the Trust of the Preferred Securities and its Common Securities
(liquidation preference $50 per common security) (the "Common Securities") are
to be invested in 7.16% Convertible Junior Subordinated Deferrable Interest
Debentures Due 2012 (the "Convertible Junior Subordinated Debentures") of the
Guarantor, to be issued pursuant to an Indenture (the "Indenture") between the
Guarantor and The Bank of New York, as trustee (the "Debenture Trustee"). The
Preferred Securities are effectively convertible into shares of Common Stock,
par value $.01 per share (the "Common Stock"), of the Guarantor. Holders
(including subsequent transferees) of the Preferred Securities will have the
registration rights set forth in the Registration Rights Agreement (the
"Registration Rights Agreement") to be entered into among
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the Trust, the Guarantor and the Purchasers (as defined below). Pursuant to the
Registration Rights Agreement, the Guarantor and the Trust have agreed to file
with the Securities and Exchange Commission (the "Commission") a shelf
registration statement (the "Shelf Registration Statement") pursuant to Rule 415
under the Securities Act of 1933, as amended (the "Securities Act"), to register
sales of the Preferred Securities, the Guarantee, the Convertible Junior
Subordinated Debentures and the shares of Common Stock issuable upon conversion
thereof (collectively, the "Securities") following the sale of the Preferred
Securities contemplated hereby. The Preferred Securities are proposed to be sold
to such purchasers, which may include you (the "Purchasers"), and at such time
(the "Closing Time") as you and the Guarantor mutually agree. Subject to the
terms and conditions stated herein, the Guarantor proposes to appoint you as its
sole or exclusive placement agent in connection with the issuance, offering and
sale of the securities.
Each of the Trust and the Guarantor hereby agrees with you as follows:
2. Representations and Warranties of the Trust and the Guarantor. Each of
the Trust and the Guarantor jointly and severally represents and warrants to
you, and agrees with you, that:
(a) An offering memorandum relating to the Preferred Securities
has been prepared by the Trust and the Guarantor. Such offering
memorandum, as supplemented as of the date of this Agreement, together
with any other document approved by the Guarantor for use in
connection with the contemplated sale of the Preferred Securities or
incorporated by reference thereto are hereinafter collectively
referred to as the "Offering Document". On the date of this Agreement,
the Offering Document does not include any 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, not misleading. The preceding sentence does not
apply to statements in or omissions from the Offering Document based
upon written information furnished to the Guarantor by you
specifically for use therein. Except as disclosed in the Offering
Document, on the date of this Agreement, the Guarantor's Annual Report
on Form 10-K most recently filed with the Commission and all reports,
including all amendments thereto (collectively, the "Exchange Act
Reports") which have been filed by the Guarantor with the Commission
or sent to stockholders pursuant to the
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Securities Exchange Act of 1934 (the "Exchange Act") since July 1,
1996, taken together, do not include any 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. Such documents, when filed with the
Commission, conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder.
(b) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act
of the State of Delaware (the "Delaware Business Trust Act") with the
power and authority to own property and conduct its business as
described in the Offering Document, and has conducted and will conduct
no business other than the transactions contemplated by this Agreement
and as described in the Offering Document; the Trust is not a party to
or bound by any agreement or instrument other than this Agreement, the
Amended and Restated Declaration of Trust (the "Trust Agreement")
between the Guarantor and the trustees named therein (the "Trustees")
and the agreements and instruments contemplated by the Trust Agreement
and the Offering Document; the Trust has no liabilities or obligations
other than those arising out of the transactions contemplated by this
Agreement and the Trust Agreement and described in the Offering
Document; and the Trust is not a party to or subject to any action,
suit or proceeding of any nature.
(c) The Guarantor 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 Offering Document; and
the Guarantor is duly qualified to do business and in good standing as
a foreign corporation in each jurisdiction in which its ownership of
property or the conduct of its business requires such qualification
except where the failure to be so qualified or in good standing, as
the case may be, will not, individually, or in the aggregate, have a
material adverse effect on the assets, operations or condition
(financial or otherwise) of the Guarantor and its subsidiaries taken
as a whole (a "Material Adverse Effect").
(d) Each subsidiary of the Guarantor that is a "significant
subsidiary" (as defined in Rule 1-02 of
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Regulation S-X of the Commission) or that is listed on Exhibit I
hereto (each of the foregoing being referred to as a "Significant
Subsidiary") has been duly incorporated and is an existing corporation
in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Offering
Document; and each significant subsidiary of the Guarantor 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 with
respect to such subsidiaries and jurisdictions where the failure to be
so qualified or in good standing, as the case may be, will not,
individually or in the aggregate, have a Material Adverse Effect; all
of the issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued and is fully
paid and nonassessable; and the capital stock of each Significant
Subsidiary owned by the Guarantor, directly or through subsidiaries,
is owned free from liens, encumbrances and defects, except insofar as
such stock has been pledged, pursuant to credit agreements filed with
the Commission, to secure obligations of the Guarantor and its
subsidiaries to their respective senior lenders.
(e) The Preferred Securities have been duly and validly
authorized by the Trust, and, when issued and delivered against
payment therefor as provided herein, will be duly and validly issued
and fully paid and nonassessable undivided beneficial interests in the
assets of the Trust and will conform to the description thereof
contained in the Offering Document; the issuance of the Preferred
Securities is not subject to preemptive or other similar rights; the
Preferred Securities will have the rights set forth in the Trust
Agreement, and the Preferred Securities when issued and delivered
against payment therefor as provided herein will be, and the Trust
Agreement, when duly executed and delivered, will be, valid and
binding obligations of the Trust; the holders of the Preferred
Securities will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
(f) The Common Securities have been duly and validly authorized
by the Trust and upon delivery by the Trust to the Guarantor against
payment therefor as
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described in the Offering Document, will be duly and validly issued
and fully paid and nonassessable undivided beneficial interests in the
assets of the Trust and will conform to the description thereof
contained in the Offering Document; the issuance of the Common
Securities is not subject to preemptive or other similar rights; and
all of the issued and outstanding Common Securities of the Trust will
be directly owned by the Guarantor free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(g) The Registration Rights Agreement has been duly authorized by
the Trust and the Guarantor and, when executed and delivered, will
conform in all material respects to the description thereof contained
in the Offering Document. The Registration Rights Agreement when
validly executed and delivered by the Trust and the Guarantor will
constitute a valid and legally binding obligation of the Trust and the
Guarantor and will be enforceable in accordance with its terms,
subject, as to enforcement, to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws
affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity
or at law).
(h) The Guarantee, the Convertible Junior Subordinated
Debentures, the Trust Agreement and the Indenture (the Guarantee, the
Convertible Junior Subordinated Debentures, the Trust Agreement and
the Indenture being collectively referred to as the "Guarantor
Agreements") have each been duly authorized and when validly executed
and delivered by the Guarantor and, in the case of the Guarantee, by
the Guarantee Trustee, in the case of the Trust Agreement, by the
Trustees and, in the case of the Indenture, by the Debenture Trustee,
and, in the case of the Convertible Junior Subordinated Debentures,
when validly issued by the Guarantor and validly authenticated and
delivered by the Debenture Trustee and paid for by the Trust, will
constitute valid and legally binding obligations of the Guarantor,
enforceable in accordance with their respective terms, subject, as to
enforcement, to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws affecting
creditors' rights generally and to general principles of equity and
the discretion of the court (regardless of whether
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the enforcement of such remedies is considered in a proceeding in
equity or at law); the Convertible Junior Subordinated Debentures are
entitled to the benefits of the Indenture; and the Guarantor
Agreements will conform in all material respects to the descriptions
thereof in the Offering Document.
(i) When the Preferred Securities are delivered and paid for
pursuant to this Agreement at the Closing Time, such Preferred
Securities will be exchangeable for Convertible Junior Subordinated
Debentures which will be convertible into the shares of Common Stock
("Underlying Shares") of the Guarantor in accordance with the Trust
Agreement; the Underlying Shares initially issuable upon conversion of
such Preferred Securities have been duly authorized and reserved for
issuance upon such conversion and, when issued upon such conversion,
will be validly issued, fully paid and nonassessable; the outstanding
shares of Common Stock of the Guarantor conform in all material
respects to the description thereof contained in the Offering
Document; and the stockholders of the Guarantor have no preemptive
rights with respect to the Preferred Securities, the Convertible
Junior Subordinated Debentures or the Underlying Shares.
(j) Except for this Agreement, there are no contracts, agreements
or understandings between the Guarantor and any person that would give
rise to a valid claim against the Guarantor or any Purchaser for a
brokerage commission, finder's fee or other like payment in connection
with the sale of the Preferred Securities.
(k) Assuming the accuracy of the representations and warranties
of the Purchasers set forth in Section 4 of the Purchase Agreement
dated of even date herewith among the Trust, the Guarantor and each of
the Purchasers (the "Purchase Agreement") no consent, approval,
authorization, or order of, or filing with, any governmental agency or
body or any court is required for the consummation of the transactions
contemplated by this Agreement, the Registration Rights Agreement and
the Guarantor Agreements in connection with the issuance and sale of
the Preferred Securities by the Trust, the exchange of the Convertible
Junior Subordinated Debentures for Preferred Securities or the
purchase of the Convertible Junior Subordinated Debentures by the
Trust, except in connection with the registration of the Securities
pursuant to the Registration Rights Agreement, and except as to state
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or foreign securities laws or by the regulations of the National
Association of Securities Dealers, Inc. ("NASD").
(l) The issue and sale of Preferred Securities, the exchange of
the Convertible Junior Subordinated Debentures for Preferred
Securities, the execution, delivery and performance of this Agreement
and the Registration Rights Agreement, the compliance by the Trust and
the Guarantor with all of the provisions of this Agreement, the
purchase of the Convertible Junior Subordinated Debentures by the
Trust and the consummation of the transactions contemplated herein
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Trust is a party or by which the Trust is
bound or to which any of the property or assets of the Trust is
subject, nor will such action result in any violation of the
provisions of the Trust Agreement or any statute or any material
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Trust or any of its properties, except
for such conflicts, breaches, defaults or violations that would not
have a material adverse effect on the assets, operations, condition
(financial and otherwise) or the prospects of the Trust taken as a
whole (a "Trust Material Adverse Effect").
(m) The issuance by the Guarantor of the Guarantee, the
compliance by the Guarantor with all of the provisions of this
Agreement, the issuance upon exchange and conversion of the Underlying
Shares, the execution, delivery and performance by the Guarantor of
the Registration Rights Agreement and the Guarantor Agreements and the
consummation of the transactions herein and therein contemplated will
not conflict with, result in the creation or imposition of any lien,
charge or encumbrance upon any assets of the Guarantor or any of its
subsidiaries pursuant to the terms of, or constitute a default under,
any material agreement, indenture or instrument, or result in a
violation of the corporate charter or by-laws of the Guarantor or any
of its subsidiaries or any material order, rule or regulation of any
court or governmental agency having jurisdiction over the Guarantor,
any of its subsidiaries or their respective properties, except for
such conflicts, liens, charges, encumbrances, defaults or violations
that would not have a Material Adverse Effect; and assuming the
accuracy of the
8
representations and warranties of the Purchasers set forth in Section
4 of the Purchase Agreement, no consent, authorization or order of, or
filing or registration with, any court or governmental agency is
required therefor, except in connection with the registration of the
Securities pursuant to the Registration Rights Agreement and except as
to state or foreign securities laws or by the regulations of the NASD.
(n) Neither the Trust, the Guarantor nor any of the Guarantor's
subsidiaries is in violation of its organizational documents or in
default under any agreement, indenture, mortgage, lease, note or
instrument, which violation or default would have a Material Adverse
Effect or a Trust Material Adverse Effect.
(o) The Trust has full power and authority to authorize, issue
and sell the Preferred Securities as contemplated by this Agreement
and to execute, deliver and perform this Agreement and the
Registration Rights Agreement.
(p) This Agreement has been duly authorized, executed and
delivered by the Trust and the Guarantor.
(q) Except as disclosed in the Offering Document, the Trustee (as
defined in the Offering Document) will on the Closing Date have good
and valid title to all the Convertible Junior Subordinated Debentures,
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 the Trust.
(r) There is no material litigation or governmental proceeding
pending or, to the knowledge of the Guarantor, threatened against the
Guarantor or any of its subsidiaries which may reasonably be expected
to result in any Material Adverse Effect.
(s) The financial statements of the Guarantor and its
consolidated subsidiaries included or incorporated by reference in the
Offering Document present fairly, in all material respects, the
financial position of the Guarantor and its consolidated subsidiaries
as of the dates shown and their results of operations and cash flows
for the periods shown, and, except as otherwise disclosed in the
Offering Document, such financial statements have been prepared in
conformity with the
9
generally accepted accounting principles in the United States applied
on a consistent basis and the assumptions used in preparing the pro
forma financial statements included in or incorporated by reference in
the Offering Document 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.
(t) Since the dates as of which information is given in the
Offering Document, no Material Adverse Effect has occurred.
(u) Neither the Trust nor the Guarantor is an open-end investment
company, unit investment trust or face-amount certificate company that
is or is required to be registered under Section 8 of the Investment
Company Act of 1940 (together with the rules and regulations
thereunder, the "Investment Company Act"), nor is it a closed-end
investment company required to be registered, but not registered,
thereunder; and each of the Trust and the Guarantor is not and, after
giving effect to the offer and sale of the Preferred Securities and
the application of the proceeds thereof as described in the Offering
Document, will not be an "investment company" as defined in the
Investment Company Act.
(v) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Preferred Securities are
listed on any national securities exchange registered under Section 6
of the Exchange Act or quoted in a U.S. automated interdealer
quotation system.
(w) The offer and sale of the Preferred Securities in the manner
contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof,
and Regulation S ("Regulation S") thereunder; and it is not necessary
to qualify an indenture in respect of any of the Securities under the
United States Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), except as contemplated by the Registration Rights
Agreement.
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(x) Neither the Guarantor, nor the Trust, nor any of their
respective affiliates, nor any person acting on behalf of any of the
foregoing (i) has, within the six-month period prior to the date
hereof, offered or sold in the United States or to any U.S. person (as
such terms are defined in Regulation S under the Securities Act) the
Preferred Securities or any security of the same class or series as
the Preferred Securities or (ii) has offered or will offer or sell the
Preferred Securities (A) in the United States by means of any form of
general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act or (B) with respect to any such
securities sold in reliance on Rule 903 of Regulation S under the
Securities Act, by means of any directed selling efforts within the
meaning of Rule 902(b) of Regulation S. The Guarantor and the Trust,
their respective affiliates and any person acting on behalf of any of
the foregoing have complied and will comply with the offering
restrictions requirement of Regulation S. The Guarantor and the Trust
have not entered and will not enter into any contractual arrangement
with respect to the distribution of the Preferred Securities except
for this Agreement, the Purchase Agreement and the Registration Rights
Agreement.
(y) The Guarantor is subject to Section 13 or 15(d) of the
Exchange Act.
(z) The Guarantor and its subsidiaries possess adequate
certificates, authorities 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
certificates or permits will not individually or in the aggregate have
a Material Adverse Effect; and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the
Guarantor or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(aa) Except as disclosed in the Offering Document and except for
statutory liens for sums not yet due or which are being contested in
good faith in appropriate proceedings, the Guarantor and its
subsidiaries have good and marketable title to all real properties and
other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would, individually or in the
aggregate, have a Material
11
Adverse Effect; and except as disclosed in the Offering Document or as
will not have a Material Adverse Effect, the Guarantor 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.
(bb) The Guarantor and its subsidiaries own or 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 business now operated by them, or presently employed by them, the
loss of which may reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Guarantor or any of its subsidiaries,
would individually or in the aggregate, have a Material Adverse
Effect.
(cc) No labor dispute with the employees of the Guarantor or any
of its subsidiaries exists or, to the knowledge of the Guarantor, is
imminent that may be reasonably expected to have a Material Adverse
Effect.
(dd) Except as disclosed in the Offering Document, neither the
Guarantor 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
requiring remediation or removal under 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
individually or in the aggregate may reasonably be expected to have a
Material Adverse Effect; and the Guarantor is not aware of any pending
investigation which might lead to such a claim.
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3. Placement of Securities.
(a) The Guarantor and the Trust hereby appoint you as sole and
exclusive placement agent in connection with the issuance and initial
offering and sale of the Preferred Securities. With respect to such
placement of the Preferred Securities, the Guarantor and the Trust and
you each represent and agree as follows (except that the Guarantor and
the Trust make no representations and warranties as to you, any of
your affiliates or any person acting on your behalf):
(i) Until the later of the completion of the distribution of
the Preferred Securities (as notified in writing by you to
the Guarantor) and the Closing Time, none of the Guarantor,
the Trust, any of their affiliates or any other person
acting on their behalf will, directly or indirectly, sell or
offer, or attempt to offer or dispose of, or solicit any
offer to buy, or otherwise approach or negotiate in respect
of, any of the Preferred Securities; neither you nor the
Guarantor nor the Trust will, directly or indirectly, offer
or sell Preferred Securities by means of any form of general
solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act, including, but not
limited to any advertisement, article, notice or other
communication published in any newspaper, magazine, or
similar media or broadcast over television or radio or at
any seminar or meeting the attendees at which were invited
through any general solicitation or general advertising; and
none of you, the Guarantor or the Trust or any such person
has heretofore done any of the foregoing. As used in this
Agreement, the terms "offer" and "sale" have the meanings
specified in Section 2(3) of the Securities Act;
(ii) Except as previously disclosed to you, neither the
Guarantor nor the Trust nor any other person acting on their
behalf has offered or sold within the 12 month period ending
with the date of this Agreement any security of the same or
similar class as the Preferred Securities;
(iii) Both the Guarantor and you shall have the right to
approve (1) every form of letter, circular, notice or other
written communication in
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connection with the offer and sale of the Preferred
Securities and (2) the persons to whom any such
communication is to be directed;
(iv) Both you and the Guarantor (and any other person acting
on behalf of you or the Guarantor) will reasonably believe
at the Closing Time that the Purchasers are qualified
institutional buyers within the meaning of Rule 144A of the
Securities Act or institutional "accredited Investors"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act; and
(v) The Guarantor and the Trust understand that you are
acting solely as their agent in the placing of the Preferred
Securities and that your responsibility is limited to a
"best efforts" basis in placing the Preferred Securities,
with no understanding, express or implied, on your part of a
commitment by you to purchase or place the Preferred
Securities; the Guarantor and the Trust understand, however,
that you reserve the right to purchase a portion of the
Preferred Securities on mutually agreeable terms and that,
subject to the transfer restrictions in the Preferred
Securities as described in the Offering Document, you may
resell the Preferred Securities so purchased to other
Purchasers and those investors to whom the Securities have
been offered.
(b) You shall communicate to the Guarantor, orally or in writing, each
offer to purchase Preferred Securities, other than those rejected by
you. You shall have the right, in your discretion reasonably
exercised, to reject any offer received by you to purchase Preferred
Securities, as a whole or in part, and any such rejection by you shall
not be deemed a breach of your agreements contained herein.
4. Certain Agreements of the Trust and the Guarantor. Each of the Trust and
the Guarantor, jointly and severally, agrees with you that:
(a) The Trust and the Guarantor will advise you promptly of any
proposal to amend or supplement the Offering Document and will not
effect such amendment or supplementation without your consent (which
consent shall not be unreasonably withheld). If, at any time during
the period commencing on the date of this Agreement and ending on the
later of (i) the Closing
14
Time or (ii) if you or any of your affiliates purchase Securities at
the Closing Time, as notified to the Guarantor prior to the Closing
Time, the first date on which neither you nor any of your affiliates
are an Existing Holder of such Securities (provided that such period
shall not in any event exceed 30 days after the Closing Time), any
event occurs as a result of which the Offering Document 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, not misleading, the Trust and the Guarantor
promptly will notify you of such event and promptly will prepare, at
their own expense, an amendment or supplement which will correct such
statement or omission. Neither your consent to, nor your delivery to
offerees or investors of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(b) The Trust and the Guarantor will furnish to you copies of the
Offering Document and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as
you reasonably request, and the Trust and the Guarantor will furnish
to you on the date hereof a copy of the Offering Document which will
include the independent accountants' reports therein manually signed
by such independent accountants. At any time when the Guarantor is not
subject to Section 13 or 15(d) of the Exchange Act, the Guarantor will
promptly furnish or cause to be furnished to you and, upon request of
holders and prospective purchasers of the Preferred Securities, to
such holders and purchasers, a reasonable number of copies of the
information required to be delivered to holders and prospective
purchasers of the Preferred Securities pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto) in order
to permit compliance with Rule 144A in connection with resales by such
holders of the Preferred Securities. The Guarantor will pay the
expenses of printing and distributing all such documents.
(c) The Trust and the Guarantor will arrange, in cooperation with you
and your counsel, for the qualification of the Preferred Securities
for sale and the determination of their eligibility for investment
under the laws of such jurisdictions in the United States and Canada
as you designate and will continue such qualifications in effect so
long as required for
15
the sale of the Preferred Securities by you; provided, however, that
the Trust and the Guarantor will not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any such jurisdiction.
(d) During the period of five years hereafter, the Guarantor will
furnish to you, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and
the Guarantor will furnish to the Purchasers (i) as soon as available,
a copy of each report and any definitive proxy statement of the
Guarantor filed with the Commission under the Exchange Act or mailed
to stockholders and (ii) from time to time, such other information
concerning the Guarantor as the Purchasers may reasonably request.
(e) During the period of two years after the Closing Time (or, after
the Shelf Registration Statement shall have been declared effective,
such shorter period as may be specified in Section 2(b) of the
Registration Rights Agreement), the Guarantor will, upon request,
furnish to you and any holder of Preferred Securities a copy of the
restrictions on transfer set forth under "Transfer Restrictions" in
the Offering Document applicable to the Preferred Securities.
(f) During the period of two years after the Closing Time (or, after
the Shelf Registration Statement shall have been declared effective,
such shorter period as may be specified in Section 2(b) of the
Registration Rights Agreement), the Guarantor will not, and will not
permit any of its affiliates (as defined in Rule 144 under the
Securities Act) to, resell any of the Preferred Securities that have
been reacquired by any of them, except for Preferred Securities
purchased by the Guarantor or any of its affiliates and resold in a
transaction registered under the Securities Act.
(g) During the period of two years after the Closing Time (or, after
the Shelf Registration Statement shall have been declared effective,
such shorter period as may be specified in Section 2(b) of the
Registration Rights Agreement), the Guarantor and the Trust will not
be or become an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company
16
Act and is not, and will not be or become, a closed-end investment
company required to be registered, but not registered, under the
Investment Company Act.
(h) The Guarantor will pay all expenses incidental to the performance
of its obligations under this Agreement, the Registration Rights
Agreement and the Guarantor Agreements, including (i) the fees and
expenses of the Trustees and their professional advisers; (ii) all
expenses in connection with the execution, issue, authentication,
packaging and initial delivery of the Preferred Securities, the
preparation and printing of this Agreement, the Registration Rights
Agreement, the Preferred Securities and the Guarantor Agreements, the
Offering Document and amendments and supplements thereto, and any
other document relating to the issuance, offer, sale and delivery of
the Preferred Securities; (iii) qualifying the Preferred Securities
for trading in The Private Offerings, Resale and Trading through
Automated Linkages (PORTAL) Market and any expenses incidental
thereto; (iv) for any expenses (including fees and disbursements of
counsel) incurred in connection with qualification of the Preferred
Securities for sale under the laws of such jurisdictions in the United
States and Canada as you designate and the printing of memoranda
relating thereto; (v) for any fees charged by investment rating
agencies for the rating of the Securities; (vi) for all travel
expenses of the Guarantor's officers and employees and any other
expenses of the Guarantor in connection with attending or hosting
meetings with prospective purchasers of the Preferred Securities; and
(vii) for expenses incurred in distributing the Offering Document
(including any amendments and supplements thereto). Except as
otherwise provided in this paragraph or in Section 8 of this
Agreement, you will pay all of your costs and expenses, including fees
and expenses of your counsel and any advertising and travel expenses
incurred by you.
(i) If you are a Purchaser of Preferred Securities in connection with
the offering, until you shall have notified the Trust and the
Guarantor and the other Purchasers of the completion of the resale of
the Preferred Securities held by you, neither the Guarantor nor the
Trust nor any of their affiliates has or will, either alone or with
one or more other persons, bid for or purchase for any account in
which it or any of its affiliates has a beneficial interest any
Preferred Securities or attempt to induce any person to purchase any
Preferred Securities; and neither it nor any of its
17
affiliates will make bids or purchases for the purpose of creating
actual, or apparent, active trading in, or of raising the price of,
the Preferred Securities.
(j) For a period of 90 days after the date hereof, the Trust and the
Guarantor will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly or file with the Commission a
registration statement under the Securities Act relating to, (a) any
trust certificates or other secu rities of the Trust (other than the
Trust Securities), (b) any preferred stock or any other securities of
the Guarantor which are substantially similar to any of the Preferred
Securities, (c) any shares of Common Stock of the Guarantor or any
other capital stock of the Guarantor, or (d) any other securities
which are con vertible into, or exercisable or exchangeable for, trust
certificates or other securities of the Trust, or preferred stock or
such substantially similar secu rities of the Guarantor, or Common
Stock of the Guarantor or other capital stock of the Guarantor,
without your prior written consent, except the offer, sale, contract
to sell, or other disposition of (i) the Preferred Securities, (ii)
Common Stock of the Guarantor issued or delivered upon conversion of
the Preferred Securities or the Convertible Junior Subordinated
Debentures, (iii) securities issued or delivered upon conversion,
exchange or exercise of any other securities of the Guarantor
outstanding on the date of the Offering Document, (iv) capital stock
of the Guarantor issued pursuant to benefit or incentive plans
maintained for its officers, directors or employees, or pursuant to a
Guarantor's dividend reinvestment plan, or (v) securities issued in
connec tion with mergers, acquisitions or similar transac tions. The
Guarantor will not at any time offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, any securities under
circum stances where such offer, sale, pledge, contract or disposition
would cause the exemption afforded by Section 4(2) of the Securities
Act or the safe harbor of Regulation S thereunder to cease to be
applicable to the offer and sale of the Preferred Securities.
(k) The Trust and the Guarantor will apply the proceeds of the offer
and sale of the Preferred Securities in the manner set forth in the
Offering Document under the caption "Use of Proceeds".
(l) The Guarantor will extend to the Purchasers and all prospective
investors the opportunity to ask
18
questions of, and receive answers from, the Guarantor concerning the
Preferred Securities and the terms and conditions of the offering
thereof and to obtain such information as such prospective investors
may consider necessary in making an informed investment decision or to
verify the accuracy of the information set forth in the Offering
Document, to the extent the Guarantor possesses the same or can
acquire it without unreasonable effort or expense, provided, however,
that the Guarantor shall be under no obligation to divulge information
that is proprietary or confidential.
5. Closing and Placement Fee. The sale of the Preferred Securities to the
Purchasers shall be held at the location, time and date mutually agreed by the
Guarantor and you and communicated to the Purchasers by telex or otherwise. At
the Closing Time, the Trust shall accept payment for the Preferred Securities
from you on behalf of the Purchasers by official bank check or checks or wire
transfer of federal (same day) funds and you shall accept delivery of Preferred
Securities by book entry to your account with the Depository Trust Company
("DTC") and you shall deliver by book entry through DTC to the account of each
Purchaser's DTC participant the Preferred Securities purchased by such
Purchaser, against payment to your account of an amount equal to the purchase
price from the account of such Purchaser's DTC participant.
In consideration of your acting as placement agent with respect to the
Preferred Securities, the Guarantor agrees to pay to you a placement fee, in
Federal (same day) funds simultaneously with the issuance of the Preferred
Securities at the Closing Time, in the amount of 2.5% of the gross principal
amount of the Preferred Securities. A portion of the placement fee will be
returned to the Guarantor at the Closing Time to reimburse the Guarantor for the
fees and disbursements of Willkie, Xxxx & Xxxxxxxxx which the Guarantor has
agreed to pay under the Purchase Agreement.
6. Solicitation and Closing Conditions. Your obligation, as agent of the
Trust and the Guarantor, to solicit offers to purchase the Preferred Securities,
the obligation of any Purchaser of Preferred Securities sold through you, or
your obligation, if any, to purchase any of the Preferred Securities, shall in
each case be subject, in your discretion, to the accuracy of the representations
and warranties on the part of the Trust and the Guarantor herein, to the
accuracy of the statements of officers of the Trust and Guarantor made pursuant
to the provisions hereof, to the performance by the Trust and the Guarantor of
its
19
obligations hereunder and to the following additional conditions on or prior to
the Closing Time:
(a) You shall have received a letter, dated the date of this Agreement, of
Price Waterhouse LLP confirming that they are independent public
accountants within the meaning of the Securities Act and the applicable
published rules and regulations thereunder ("Rules and Regulations") and to
the effect that:
(i) in their opinion the consolidated financial statements examined by
them and incorporated by reference in the Offering Document and in the
Exchange Act Reports comply as to form in all material respects with
the applicable accounting requirements of the Securities Act and the
related published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of the Guarantor, inquiries of officials of the
Guarantor who have responsibility for financial and accounting matters
and other specified procedures, nothing came to their attention that
caused them to believe that:
(A) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
five days prior to the date of this Agreement, there was any
change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Guarantor and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated net current assets or net assets, as compared with
amounts shown on the latest balance sheet included in the
Exchange Act Reports; or
(B) for the period from the closing date of the latest income
statement included in the Exchange Act Reports to the closing
date of the latest available income statement read by such
accountants there were any decreases as compared with the
corresponding period of the previous year and with the period of
corresponding length ended the date of the latest income
statement included in the Exchange Act Reports in consolidated
net
20
sales, net income or in the total or per share amounts of
consolidated income before extraordinary items or net income.
except in all cases set forth in clauses (A) and (B) above for changes,
increases or decreases which the Exchange Act Reports disclose have occurred or
may occur or which are described in such letter;
(iii) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Offering Document and the Exchange Act Reports (in
each case to the extent that such dollar amounts, percentages and
other financial information are derived from the general accounting
records of the Guarantor and its subsidiaries subject to the internal
controls of the Guarantor's accounting system or are derived directly
from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter; and
(iv) after reading the unaudited pro forma computation of earnings per
share, ratio of earnings to fixed charges, capitalization and
financial statements included or incorporated in the Offering Document
and the Exchange Act Reports (the "pro forma financial statements");
carrying out certain specified procedures; making inquiries of certain
officials of the Guarantor who have responsibility for financial and
accounting matters; and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts in
the pro forma financial statements, nothing came to their attention
which caused them to believe that the pro forma financial statements
do not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the
pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
(b) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) any change, or any development or event involving a
prospective change, in or affecting particularly the
21
condition (financial or other), business, properties or results of
operations of the Trust or the Guarantor and its subsidiaries which, in
your reasonable judgment, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the offering or the sale of
and payment for the Preferred Securities; (ii) any downgrading in the
rating of any debt securities of the Guarantor by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act) or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Guarantor (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 either of the New York Stock Exchange or The
Nasdaq Stock Market's National Market, or any setting of minimum prices for
trading on any such exchange, or any suspension of trading of any
securities of the Guarantor on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by U.S. Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if,
in your reasonable judgment, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the offering or sale of and payment for the
Preferred Securities.
(c) You and the Purchasers shall have received opinions, dated such Closing
Date of (i) Xxxxxxxxx, Xxxxxxx & Xxxxx, L.L.P., counsel for the Trust and
the Guarantor in the forms attached hereto as Exhibits A-1 and A-2; (ii)
Morris, Nichols, Arsht & Xxxxxxx, special Delaware counsel to the Trust and
the Guarantor, substantially in the form attached hereto as Exhibit B;
(iii) Xxxxx, Xxxxxx & Xxxxxx, counsel to the Guarantee Trustee, Indenture
Trustee and Property Trustee, in the form attached hereto as Exhibit C and
(iv) Morris, Nichols, Arsht & Xxxxxxx, counsel for the Delaware Trustee, in
the form attached hereto as Exhibit D.
(d) You and the Purchasers 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 Guarantor in which such officers, to
the best of their knowledge after
22
reasonable investigation, shall state that the representations and
warranties of the Trust and the Guarantor in this Agreement are true and
correct, that the Trust and the Guarantor have complied with all agreements
and satisfied all conditions on their part to be performed or satisfied
hereunder at or prior to such Closing Date and that, subsequent to the
dates of the most recent financial statements in the Offering Document
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
Guarantor and its subsidiaries taken as a whole except as set forth in or
contemplated by the Offering Document or as described in such certificate.
(e) You shall have received a letter, dated the Closing Time, of Price
Waterhouse LLP which meets the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection will
be a date not more than five days prior to the Closing Time for the
purposes of this subsection.
(f) The Registration Rights Agreement shall have been duly executed and
delivered by the Guarantor and the Trust.
The Guarantor will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you reasonably request. You may in your
sole discretion waive compliance with any conditions to your obligations
hereunder.
7. Indemnification and Contribution. (a) The Trust and the Guarantor will
jointly and severally indemnify you and hold you harmless against any losses,
claims, damages or liabilities, joint or several, to which you may become
subject, under the Securities Act or the Exchange Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Offering Document, or any amendment or
supplement thereto, or the Exchange Act Reports, or arise out of or are based
upon the omission or alleged omission to state therein a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading and will reimburse you for any legal or
other expenses reasonably incurred by you in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided,
23
however, that the Trust and the Guarantor 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 Trust and the Guarantor by you
specifically for use therein, it being understood and agreed that the only such
information consists of the information described as such in subsection (b)
below.
(b) You will indemnify and hold harmless the Trust and the Guarantor
against any losses, claims, damages or liabilities to which the Trust and the
Guarantor may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or the alleged omission to state
therein 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 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 Trust and the
Guarantor by you specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Trust and the Guarantor in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred.
(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,
24
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Trust and the
Guarantor on the one hand and you on the other from the offering of the
Preferred 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 Trust and the Guarantor on the one hand and you 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 Trust and the Guarantor on
the one hand and you on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Trust bear to the total discounts and commissions received by you from
the Guarantor under this Agreement. 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 Trust and the Guarantor or you 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
25
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), you shall
not be required to contribute any amount in excess of the amount by which (x)
the total price received by the Trust for the sale of the Preferred Securities
less the placement fee payable to you exceeds (y) the amount of any damages
which you have 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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The obligations of the Trust and the Guarantor under this Section shall
be in addition to any liability which the Trust and the Guarantor may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls you within the meaning of the Securities Act or the Exchange
Act; and your obligations under this Section shall be in addition to any
liability which you may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Trust and the Guarantor
within the meaning of the Securities Act or the Exchange Act.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Trust and the Guarantor or their officers and of you 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 you, the Trust or the Guarantor or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Preferred Securities. If for any reason the purchase of the
Preferred Securities by the Purchasers is not consummated, the Trust and the
Guarantor shall remain responsible for the expenses to be paid or reimbursed by
them pursuant to Section 4 and the respective obligations of the Trust and the
Guarantor and you pursuant to Section 7 shall remain in effect and if any
Preferred Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 4 shall also remain in
effect. If the purchase of the Preferred Securities by the Purchasers is not
consummated for any reason other than solely because of the occurrence of any
event specified in
26
clause (iii), (iv) or (v) of Section 6(b), the Trust and the Guarantor will
reimburse you for all out-of-pocket expenses (including fees and disbursements
of counsel) reasonably incurred by you in connection with the offering of the
Preferred Securities.
9. Notices. All communications hereunder will be in writing and, if sent to
you will be mailed, delivered or telegraphed and confirmed to Credit Suisse
First Boston Corporation, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000,
Attention: Investment Banking Department - Transactions Advisory Group, or, if
sent to the Trust or the Guarantor, will be mailed, delivered or telegraphed and
confirmed to it at DT Industries, Inc., Corporate Centre, Suite 2-300, 0000 X.
Xxxxxxxx, Xxxxxxxxxxx, XX 00000, Attention: President and Chief Executive
Officer.
10. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder.
11. 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.
12. 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.
Each of the Trust and the Guarantor hereby submits to the nonexclusive
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.
27
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us one of the counterparts hereof, whereupon it will
become a binding agreement between the Trust and the Guarantor and you in
accordance with its terms.
Very truly yours,
DT CAPITAL TRUST,
by Xxxxxxx X. Xxxx, solely in
his capacity as trustee
and not in his individual
capacity,
/s/ Xxxxxxx X. Xxxx
--------------------------------------
by Xxxxxxx X. Xxxxxx, solely in
his capacity as trustee
and not in his individual
capacity,
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
DT INDUSTRIES, INC.,
by /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
The foregoing Placement
Agreement is hereby confirmed
and accepted as of the date
first above written.
CREDIT SUISSE FIRST BOSTON
CORPORATION,
by /s/ Xxxx Xxxxxx
-------------------------
Name: Xxxx Xxxxxx
Title: Director
