Exhibit 1.1
DRAFT: 2/17/97
DTM CORPORATION
2,553,000 Shares
Common Stock
($.0002 Par Value)
UNDERWRITING AGREEMENT
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_______________, 1997
X.X. XXXXXXX & SONS, INC.
LADENBURG XXXXXXXX & CO. INC.
As Representatives of the Several Underwriters
c/o X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
The undersigned, DTM Corporation, a Texas corporation (the "Company"), The
X.X. Xxxxxxxx Company, a New York corporation ("Xxxxxxxx"), and the persons
listed on Schedule I hereto (collectively with Xxxxxxxx, the "Selling
Shareholders"), hereby address you as the representatives (the
"Representatives") of each of the persons, firms and corporations listed on
Schedule II hereto (collectively, the "Underwriters") and hereby confirm their
agreement with the several Underwriters as follows:
1. Description of Shares. The Company proposes to issue and sell to the
Underwriters 2,300,248 shares of its Common Stock, par value $.0002 per share,
and the Selling Shareholders propose to sell to the Underwriters a total of
252,752 shares of the Company's Common Stock, par value $.0002 per share, as set
forth on Schedule I hereto (such 2,553,000 shares of Common Stock are herein
referred to as the "Firm Shares"). Solely for the purpose of covering over-
allotments in the sale of the Firm Shares, Xxxxxxxx further proposes to grant
the right to the Underwriters to purchase up to an additional 255,300 shares
(the "Option Shares"), as provided in Section 3 of this Agreement. The Firm
Shares and the Option Shares are herein sometimes referred to as the "Shares"
and are more fully described in the Prospectus hereinafter defined.
2. Purchase, Sale and Delivery of Firm Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees and each Selling
Shareholder agrees, severally and not jointly, to sell to the Underwriters, and
each such Underwriter agrees, severally and not jointly, (a) to purchase from
the Company and from each of the Selling Shareholders, pro rata, at a purchase
price of $_______ per share, the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule II hereto and (b) to purchase from Xxxxxxxx
any additional number of Option Shares which such Underwriter may become
obligated to purchase pursuant to Section 3 hereof.
The Company and the Selling Shareholders will deliver definitive
certificates for the Firm Shares at the office of X.X. Xxxxxxx & Sons, Inc., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Xxxxxxx' Office"), or such other place as you
and the Company may mutually agree upon, for the accounts of the Underwriters
against payment to the Company and the Selling Shareholders of the purchase
price for the Firm Shares sold by them to the several Underwriters by wire
transfer or certified or bank cashiers' check in federal (same day available)
funds payable to the order of the Company and the Selling Shareholders,
respectively, and delivered to Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx
00000, or at such other place as may be agreed upon between you and the Company
(the "Place
of Closing"), at 10:00 a.m., St. Louis time, on ________________, 1997, or at
such other time and date not later than five full business days thereafter as
you and the Company may agree, such time and date of payment and delivery being
herein called the "Closing Date."
The certificates for the Firm Shares so to be delivered will be made
available to you for inspection at Xxxxxxx' Office (or such other place as you
and the Company may mutually agree upon) at least one full business day prior to
the Closing Date and will be in such names and denominations as you may request
at least three full business days prior to the Closing Date.
It is understood that an Underwriter, individually, may (but shall not be
obligated to) make payment on behalf of the other Underwriters whose funds shall
not have been received prior to the Closing Date for Shares to be purchased by
such Underwriter. Any such payment by an Underwriter shall not relieve the other
Underwriters of any of their obligations hereunder.
It is understood that the Underwriters propose to offer the Shares to the
public upon the terms and conditions set forth in the Registration Statement
hereinafter defined.
3. Purchase, Sale and Delivery of the Option Shares. Xxxxxxxx hereby
grants an option to the Underwriters to purchase from it up to 255,300 Option
Shares on the same terms and conditions as the Firm Shares; provided, however,
that such option may be exercised only for the purpose of covering any over-
allotments which may be made by them in the sale of the Firm Shares. No Option
Shares shall be sold or delivered unless the Firm Shares previously have been,
or simultaneously are, sold and delivered.
The option is exercisable on behalf of the several Underwriters by
you, as Representatives, at any time, and from time to time, before the
expiration of 30 days from the date of this Agreement, for the purchase of all
or part of the Option Shares covered thereby, by notice given by you to the
Company and Xxxxxxxx in the manner provided in Section 13 hereof, setting forth
the number of Option Shares as to which the Underwriters are exercising the
option, and the date of delivery of said Option Shares, which date shall not be
more than five business days after such notice unless otherwise agreed to by the
parties. You may terminate the option at any time, as to any unexercised portion
thereof, by giving written notice to the Company and Xxxxxxxx to such effect.
You, as Representatives, shall make such allocation of the Option Shares
among the Underwriters as may be required to eliminate purchases of fractional
Shares.
Delivery of definitive certificates for the Option Shares with respect to
which the option shall have been exercised shall be made to or upon your order
at Xxxxxxx' Office (or at such other place as you and the Company may mutually
agree upon), against payment by you of the per share purchase price to Xxxxxxxx
by wire transfer or certified or bank cashier's check or checks, payable in
federal (same day available) funds. Such payment and delivery shall be made at
10:00 a.m., St. Louis time, on the date designated in the notice given by you as
above provided for, unless some other date and time are agreed upon, which date
and time of payment and delivery are called the "Option Closing Date." The
certificates for the Option Shares so to be delivered will be made available to
you for inspection at Xxxxxxx' Office at least one full business day prior to
the Option Closing Date and will be in such names and denominations as you may
request at least two full business days prior to the Option Closing Date. On the
Option Closing Date, the Company and Xxxxxxxx shall provide the Underwriters
such representations, warranties, opinions and covenants with respect to the
Option Shares as are required to be delivered on the Closing Date with respect
to the Firm Shares.
4. Representations, Warranties and Agreements of the Company, The X.X.
Xxxxxxxx Company and the Selling Shareholders. (a) The Company represents and
warrants to and agrees with each Underwriter that:
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(i) A registration statement (Registration No. 333-04173) on Form
S-1 with respect to the Shares, including a preliminary prospectus, and
such amendments to such registration statement as may have been required to
the date of this Agreement, has been carefully prepared by the Company
pursuant to and in conformity with the requirements of the Securities Act
of 1933, as amended (the "Act"), and the Rules and Regulations (the "Rules
and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and has been filed with the Commission under the
Act. Copies of such registration statement, including any amendments
thereto, each related preliminary prospectus (meeting the requirements of
Rule 430 or 430A of the Rules and Regulations) contained therein, the
exhibits, financial statements and schedules have heretofore been delivered
by the Company to you. If such registration statement has not become
effective under the Act, a further amendment to such registration
statement, including a form of final prospectus, necessary to permit such
registration statement to become effective will be filed promptly by the
Company with the Commission. If such registration statement has become
effective under the Act, a final prospectus containing information
permitted to be omitted at the time of effectiveness by Rule 430A of the
Rules and Regulations will be filed promptly by the Company with the
Commission in accordance with Rule 424(b) of the Rules and Regulations. The
term "Registration Statement" as used herein means the registration
statement as amended at the time it becomes or became effective under the
Act (the "Effective Date"), including financial statements and all exhibits
and, if applicable, the information deemed to be included by Rule 430A of
the Rules and Regulations. The term "Prospectus" as used herein means (i)
the prospectus as first filed with the Commission pursuant to Rule 424(b)
of the Rules and Regulations or, (ii) if no such filing is required, the
form of final prospectus included in the Registration Statement at the
Effective Date or (iii) if a Term Sheet or Abbreviated Term Sheet (as such
terms are defined in Rules 434(b) and 434(c), respectively, of the Rules
and Regulations) is filed with the Commission pursuant to Rule 424(b)(7) of
the Rules and Regulations, the Term Sheet or Abbreviated Term Sheet and the
last Preliminary Prospectus filed with the Commission prior to the time the
Registration Statement became effective, taken together. The term
"Preliminary Prospectus" as used herein shall mean a preliminary prospectus
as contemplated by Rule 430 or 430A of the Rules and Regulations included
at any time in the Registration Statement.
(ii) The Commission has not issued, and is not to the knowledge of
the Company threatening to issue, an order preventing or suspending the use
of any Preliminary Prospectus or the Prospectus nor instituted proceedings
for that purpose. Each Preliminary Prospectus at its date of issue, the
Registration Statement and the Prospectus and any amendments or supplements
thereto contains or will contain, as the case may be, all statements which
are required to be stated therein by, and in all material respects conform
or will conform, as the case may be, to the requirements of, the Act and
the Rules and Regulations. Neither the Registration Statement nor any
amendment thereto, as of the applicable effective date, and neither the
Prospectus nor any supplement thereto contains or will contain, as the case
may be, 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 light of the circumstances under which they
were made, not misleading; provided, however, that the Company does not
make any representation or warranty as to information contained in or
omitted from the Registration Statement or the Prospectus, or any such
amendment or supplement, in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of the Underwriters
specifically for use in the preparation thereof.
(iii) The filing of the Registration Statement and the execution and
delivery of this Agreement have been duly authorized by the Board of
Directors of the Company; this Agreement constitutes a valid and legally
binding obligation of the Company enforceable in accordance with its terms
(except to the extent the enforceability of the indemnification and
contribution provisions of Section 7 hereof may be limited by public policy
considerations as expressed in the Act as construed by courts of competent
jurisdiction, and except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws affecting creditors'
rights generally and by general principles of equity); the issue and sale
of the Shares by the Company and the performance of this Agreement and the
consummation of the transactions herein contemplated will not result in a
violation of the Company's articles of incorporation or bylaws or
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result in a breach or violation of any of the terms and provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any properties or assets of the Company or
its subsidiary under, any statute, or under any indenture, mortgage, deed
of trust, note, loan agreement, sale and leaseback arrangement or other
agreement or instrument to which the Company or its subsidiary is a party
or by which they are bound or to which any of the properties or assets of
the Company or its subsidiary is subject, or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or its subsidiary or their properties, except to such extent as
does not materially adversely affect the business of the Company and its
subsidiary taken as a whole; no consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency
or body is required for the consummation of the transactions herein
contemplated, except such as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") or under the Act or Rules and
Regulations or any state securities laws.
(iv) Except as described in the Prospectus, neither the Company nor
its subsidiary has sustained since the date of the latest audited financial
statements included in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree. Except as contemplated in the
Prospectus, subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, the Company and its
subsidiary taken as a whole have not incurred any material liabilities or
material obligations, direct or contingent, other than in the ordinary
course of business, or entered into any material transactions not in the
ordinary course of business, and there has not been any material change in
the capital stock or long-term debt of the Company and its subsidiary taken
as a whole or any material adverse change in the condition (financial or
other), net worth, business, affairs, management, prospects or results of
operations of the Company and its subsidiary taken as a whole. The Company
and its subsidiary have filed all material federal, state and foreign
income and franchise tax returns and paid all taxes shown as due thereon;
all tax liabilities are adequately provided for on the books of the Company
and its subsidiary except to such extent as would not materially adversely
affect the business of the Company and its subsidiary taken as a whole; the
Company and its subsidiary have made all necessary payroll tax payments and
are current in the payment thereof and up-to-date as of the date of this
Agreement except to such extent as would not materially adversely affect
the business of the Company and its subsidiary taken as a whole; and
neither the Company nor its subsidiary has knowledge of any tax proceeding
or action pending or threatened against the Company or its subsidiary which
might materially adversely affect their business or property.
(v) Except as described in the Prospectus, there is not now pending
or, to the knowledge of the Company, threatened or contemplated, any
action, suit or proceeding to which the Company or its subsidiary is a
party before or by any court or public, regulatory or governmental agency
or body which might be expected to result (individually or in the
aggregate) in any material adverse change in the condition (financial or
other), business or prospects of the Company and its subsidiary taken as a
whole, or might be expected (individually or in the aggregate) to
materially and adversely affect the properties or assets thereof; and there
are no contracts or documents of the Company or its subsidiary which would
be required to be filed as exhibits to the Registration Statement by the
Act or by the Rules and Regulations which have not been filed as exhibits
to the Registration Statement.
(vi) The Company has duly and validly authorized capital stock as
described in the Prospectus; all outstanding shares of Common Stock of the
Company and the Shares conform, or when issued will conform, to the
description thereof in the Registration Statement and the Prospectus and
have been, or, when issued and paid for will be, duly authorized, validly
issued, fully paid and nonassessable; and the issuance of the Shares to be
purchased from the Company hereunder is not subject to preemptive rights.
(vii) The Company and its subsidiary have been duly incorporated and
are validly existing as corporations in good standing under the laws of the
states or other jurisdictions in which they are
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incorporated, with full power and authority (corporate and other) to own,
lease and operate their properties and conduct their businesses as
described in the Registration Statement; the Company and its subsidiary are
duly qualified to do business as foreign corporations in good standing in
each state or other jurisdiction in which their ownership or leasing of
property or conduct of business legally requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect on the ability of the Company and its subsidiary to conduct its or
their business as described in the Registration Statement; and the
outstanding shares of capital stock of the Company's subsidiary have been
duly authorized and validly issued, are fully paid and nonassessable and
are owned by the Company free and clear of any mortgage, pledge, lien,
encumbrance, charge or adverse claim and are not the subject of any
agreement or understanding with any person; no options, warrants or other
rights to purchase, agreement or other obligations to issue or other rights
to convert any obligations into shares of capital stock or ownership
interests in the subsidiary are outstanding.
(viii) Ernst & Young LLP, the accounting firm which has audited the
financial statements filed with the Commission as a part of the
Registration Statement, is an independent public accounting firm within the
meaning of the Act and the Rules and Regulations.
(ix) The consolidated financial statements and schedules of the
Company and its subsidiary, including the notes thereto, filed with and as
a part of the Registration Statement, present fairly in all material
respects the consolidated financial position of the Company and its
subsidiary as of the respective dates thereof and the consolidated results
of operations and statements of cash flow for the respective periods
covered thereby, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved
except as otherwise disclosed in the Prospectus. The selected financial
data included in the Registration Statement and Prospectus present fairly
the information shown therein and have been compiled on a basis consistent
with that of the audited financial statements in the Registration Statement
and Prospectus.
(x) Neither the Company nor its subsidiary is in default with
respect to any contract or agreement to which it is a party; provided that
this representation shall not apply to defaults which in the aggregate are
not materially adverse to the condition, financial or other, of the
business or prospects of the Company and its subsidiary taken as a whole.
(xi) Neither the Company nor its subsidiary is in violation of any
laws, ordinances or governmental rules or regulations to which it is
subject, and neither the Company nor its subsidiary has failed to obtain
any other licenses, permits, franchises, easements, consents, or other
governmental authorizations necessary to the ownership, leasing and
operation of its properties or to the conduct of its business, which
violation or failure would materially adversely affect the business,
operations, properties, prospects, profits or condition (financial or
other) of the Company and its subsidiary taken as a whole. Neither the
Company nor its subsidiary has, at any time during the past five years (A)
made any unlawful contributions to any candidate for any political office,
or failed fully to disclose any contribution in violation of law, or (B)
made any payment to state, federal or foreign government officer or
officers, or other person charged with similar public or quasi-public duty
(other than payment required or permitted by applicable law).
(xii) Except as described in the Prospectus, (a) the Company and its
subsidiary own or possess, or can acquire on reasonable terms, adequate
patents, patent licenses, trademarks, service marks and trade names
necessary to conduct the business now operated by them, and (b) neither the
Company nor its subsidiary has received any notice of infringement of or
conflict with asserted rights of others with respect to any patents, patent
licenses, trademarks, service marks or trade names which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially adversely affect the conduct of the business, operations,
financial condition or income of the Company and its subsidiary taken as a
whole.
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(xiii) The Company and its subsidiary have good and marketable title
to all property owned by them, free and clear of all liens, encumbrances,
restrictions and defects except such as are described in the Registration
Statement or do not interfere in any material respect with the use made and
proposed to be made of such property; and any property held under lease or
sublease by the Company or its subsidiary is held under valid, subsisting
and enforceable leases or subleases with such exceptions as are not
material and do not interfere in any material respect with the use made and
proposed to be made of such property by the Company and its subsidiary, and
neither the Company nor its subsidiary has any notice or knowledge of any
material claim of any sort which has been, or is reasonably likely to be,
asserted by anyone adverse to the Company's or its subsidiary's rights as
lessee or sublessee under any lease or sublease described above, or
affecting or questioning the Company's or its subsidiary's rights to the
continued possession of the leased or subleased premises under any such
lease or sublease in conflict with the terms thereof.
(xiv) Except as described in the Prospectus, to the knowledge of the
Company, there is no factual basis for any action, suit or other proceeding
involving the Company or its subsidiary or any of their material assets for
any failure of the Company or its subsidiary, or any predecessor thereof,
to comply with any requirements of federal, state or local regulation
relating to air, water, solid waste management, hazardous or toxic
substances, or the protection of health or the environment. Except as
described in the Prospectus, none of the property owned or leased by the
Company or its subsidiary is, to the knowledge of the Company, contaminated
with any waste or hazardous substances, and neither the Company nor its
subsidiary may be deemed an "owner or operator" of a "facility" or "vessel"
which owns, possesses, transports, generates or disposes of a "hazardous
substance" as those terms are defined in (S)9601 of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
(S)9601 et seq.
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(xv) No labor disturbance exists with the employees of the Company
or its subsidiary or, to the knowledge of the Company, is imminent which
would have a material adverse effect on the Company and its subsidiary
taken as a whole.
(xvi) The Company has not taken nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in stabilization or manipulation of the price of the
Company's Common Stock, and the Company is not aware of any such action
taken or to be taken by affiliates of the Company.
(xvii) All issuances of stock appreciation rights pursuant to the DTM
Corporation Equity Appreciation Plan were exempt from the registration
requirements of the Act.
(xviii) The Company is not an "investment company" or a company
"controlled" by an "investment company" with the meaning of the Investment
Company Act of 1940, as amended.
(b) Xxxxxxxx represents and warrants to and agrees with each Underwriter
that:
(i) To Xxxxxxxx'x knowledge, the representations and warranties of
the Company set forth in subsection (a) of this Section 4 are true and
correct. For purposes of this Section 4(b), the knowledge of Xxxxxxxx is
deemed to include the knowledge of the following directors, officers,
employees, agents and representatives of Xxxxxxxx who have had significant
involvement with the business and affairs of the Company: D. Xxx Xxxxxx,
Xxxxxxxx X. Xxxxxx, Xxxxxx X. Rolls, Xxxx Xxxxxxxx, Xxxxxxxx X. Xxxxxx and
Xxxxx X. Xxxxxx. For purposes of this subsection (i), the knowledge of
Messrs. Xxxxxx, Xxxxxx and Rolls shall include what each of the foregoing
individuals knows or should have known in his capacity as director of the
Company or in connection with any duties specifically delegated to him by
the Board of Directors of the Company, and the knowledge of Messrs.
Shamanis and Xxxxxx and Xx. Xxxxxx shall include what each of such
individuals knows, or in the absence of his or her negligence should have
known, in the scope of any representation of the Company or Xxxxxxxx
undertaken by such person.
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(ii) Other than the individuals identified in subsection (i) above,
no other directors, officers, employees, agents or representatives of
Xxxxxxxx have had significant involvement with the business of the Company.
(c) Each Selling Shareholder severally represents and warrants to and
agrees with each Underwriter that:
(i) All authorizations and consents necessary for the execution and
delivery by it of this Agreement and the sale and delivery of the Shares to
be sold by such Selling Shareholder hereunder have been given and are in
full force and effect on the date hereof and will be in full force and
effect on the Closing Date (and, if applicable, the Option Closing Date).
(ii) Such Selling Shareholder has, and on the Closing Date (and, if
applicable, the Option Closing Date) will have, good and valid title to the
Shares to be sold by such Selling Shareholder, free and clear of all liens,
mortgages, pledges, encumbrances, claims, equities and security interests
whatsoever, and full right, power and authority to enter into this Agreement
and to sell, assign, transfer and deliver the Shares to be sold by such
Selling Shareholder hereunder.
(iii) Upon delivery of and payment for such Shares hereunder, the
several Underwriters will acquire valid and unencumbered title to such
Shares to be sold by such Selling Shareholder hereunder, free and clear of
all liens, mortgages, pledges, encumbrances, claims, equities and security
interests whatsoever.
(iv) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action designed to or which might be reasonably
expected to cause or result in stabilization or manipulation of the price of
the Company's Common Stock, and such Selling Shareholder is not aware of any
such action taken or to be taken by affiliates of such Selling Shareholder.
(v) Certificates in negotiable form representing all of the Shares
to be sold by such Selling Shareholder hereunder have been placed in the
custody of D. Xxx Xxxxxx and Uday Bellary (the "Custodians") under a Power
of Attorney and Custody Agreement (the "Custody Agreement"), duly executed
and delivered by such Selling Shareholder, with the Custodians having the
authority to deliver the Shares to be sold by such Selling Shareholder
hereunder, which Custody Agreement appoints the Custodians as such Selling
Shareholder's attorneys-in-fact (the "Attorneys-in-Fact") with the
Attorneys-in-Fact having authority to execute and deliver this Agreement on
behalf of such Selling Shareholder, to determine the purchase price to be
paid by the Underwriters to the Selling Shareholders as provided in Section
2, to authorize the delivery of the Shares to be sold by it hereunder and
otherwise to act on behalf of such Selling Shareholder in connection with
the transactions contemplated by this Agreement and such Custody Agreement.
(vi) The Shares represented by the certificates held in custody for
such Selling Shareholder under the Custody Agreement are subject to the
interests of the Underwriters hereunder, and the arrangements made by such
Selling Shareholder for such custody, and the appointment by such Selling
Shareholder of the Custodians and of the Attorneys-in-Fact under the Custody
Agreement, are to that extent irrevocable.
(vii) The obligations of such Selling Shareholders hereunder shall
not be terminated by operation of law, and if any such event should occur
before the delivery of the Shares hereunder, certificates representing the
Shares shall be delivered by or on behalf of each Selling Shareholder in
accordance with the terms and conditions of this Agreement and of the
Custody Agreement, and actions taken by the Custodians pursuant to the
Custody Agreement or by the Attorneys-in-Fact pursuant to the Power of
Attorney shall be as valid as if such event had not occurred, regardless of
whether or not the Custodians or Attorneys-in-Fact, or any of them, shall
have received notice of such event.
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(viii) Such Selling Shareholder is not prompted to sell shares of
Common Stock by any material non-public information concerning the Company
or its subsidiary which is not included in the Registration Statement.
(d) Any certificate signed by any officer of the Company or Xxxxxxxx and
delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company or Xxxxxxxx, as applicable, to each
Underwriter as to the matters covered thereby; and any certificate signed by or
on behalf of any Selling Shareholder as such and delivered to you or to counsel
for the Underwriters shall be deemed a representation and warranty by such
Selling Shareholder to each Underwriter as to the matters covered thereby.
5. Additional Covenants. The Company, with respect to itself, and, where
expressly indicated, Xxxxxxxx and/or the Selling Shareholders, each with respect
to itself, covenant and agree with the several Underwriters that:
(a) If the Registration Statement is not effective under the Act, the
Company will use its best efforts to cause the Registration Statement to become
effective as promptly as possible, and it will notify you, promptly after it
shall receive notice thereof, of the time when the Registration Statement has
become effective. The Company (i) will prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations, if required, a
Prospectus containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on Rule 430A of the
Rules and Regulations or otherwise or Term Sheet or Abbreviated Term Sheet, as
applicable; (ii) will not file any amendment to the Registration Statement or
supplement to the Prospectus of which the Underwriters shall not previously have
been advised and furnished with a copy or to which the Underwriters shall have
reasonably objected in writing or which is not in compliance with the Rules and
Regulations; and (iii) will promptly notify you after it shall have received
notice thereof of the time when any amendment to the Registration Statement
becomes effective or when any supplement to the Prospectus has been filed.
(b) The Company will advise the Underwriters promptly, after it shall
receive notice or obtain knowledge thereof, of any request of the Commission for
amendment of the Registration Statement or for the preparation, filing and
circulation of a supplement to the Prospectus or for any additional information,
or of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of the Prospectus or of
the institution or threatening of any proceedings for that purpose, and the
Company will use its best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus and to obtain as soon as
possible the lifting thereof, if issued.
(c) The Company will cooperate with the Underwriters and their counsel in
endeavoring to qualify the Shares for sale under the securities laws of such
jurisdictions as they may have designated and will make such applications, file
such documents, and furnish such information as may be necessary for that
purpose, provided the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction where it is not now so qualified or required to file such a consent
or to subject itself to taxation as doing business in any jurisdiction where it
is not now so taxed. The Company will, from time to time, file such statements,
reports, and other documents, as are or may be required to continue such
qualifications in effect for so long a period as the Underwriters may reasonably
request.
(d) The Company will deliver to, or upon the order of, the Underwriters,
without charge from time to time, as many copies of any Preliminary Prospectus
as they may reasonably request. The Company will deliver to, or upon the order
of, the Underwriters without charge as many copies of the Prospectus, or as it
thereafter may be amended or supplemented, as they may from time to time
reasonably request. The Company consents to the use of such Prospectus by the
Underwriters and by all dealers to whom the Shares may be sold, both in
connection with the offering or sale of the Shares and for such period of time
thereafter as the Prospectus is required by law to be delivered in connection
with the offering or sale of the Shares. The Company further consents to the
use of such Prospectus by the Underwriters and by all dealers to whom the Shares
may be sold for other ordinary and customary purposes at the Underwriters' sole
risk. The Company will deliver to the Underwriters at or before the Closing
Date
8
two signed copies of the Registration Statement and all amendments thereto
including all exhibits filed therewith, and will deliver to the Underwriters
such number of copies of the Registration Statement, without exhibits, and of
all amendments thereto, as they may reasonably request.
(e) If, during the period in which a prospectus is required by law to be
delivered by an Underwriter or dealer, any event shall occur as a result of
which, in the judgment of the Company or in your judgment or in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
not misleading, or, if it is necessary at any time to amend or supplement the
Prospectus to comply with any law, the Company promptly will prepare and file
with the Commission an appropriate amendment to the Registration Statement or
supplement to the Prospectus so that the Prospectus as so amended or
supplemented will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its shareholders as soon as
it is practicable to do so, but in any event not later than 15 months after the
effective date of the Registration Statement, an earnings statement in
reasonable detail, covering a period of at least 12 consecutive months beginning
after the effective date of the Registration Statement, which earnings statement
shall satisfy the requirements of Section 11(a) of the Act and Rule 158 of the
Rules and Regulations and will advise the Underwriters in writing when such
statement has been so made available.
(g) The Company will, for a period of five years from the Closing Date,
deliver to the Underwriters at their principal executive offices a reasonable
number of copies of annual reports, quarterly reports, current reports and
copies of all other documents, reports and information furnished by the Company
to its shareholders or filed with any securities exchange pursuant to the
requirements of such exchange or with the Commission pursuant to the Act or the
Securities Exchange Act of 1934, as amended (the "1934 Act"). The Company will
deliver to the Underwriters similar reports with respect to any significant
subsidiaries, as that term is defined in the Rules and Regulations, which are
not consolidated in the Company's financial statements. Any report, document or
other information required to be furnished under this paragraph (g) shall be
furnished as soon as practicable after such report, document or information
becomes available.
(h) The Company will apply the proceeds from the sale of the Shares as set
forth in the description under "Use of Proceeds" in the Prospectus, which
description complies in all respects with the requirements of Item 504 of
Regulation S-K.
(i) The Company will file with the Commission such reports on Form SR as may
be required pursuant to Rule 463 under the Act.
(j) The Company will supply you with copies of all correspondence to and
from, and all documents issued to and by, the Commission in connection with the
registration of the Shares under the Act.
(k) Prior to the Closing Date (and, if applicable, the Option Closing Date),
the Company will furnish to you promptly, copies of any unaudited interim
consolidated financial statements of the Company and its subsidiary for any
periods subsequent to the periods covered by the financial statements appearing
in the Registration Statement and the Prospectus.
(l) Prior to the Closing Date (and, if applicable, the Option Closing Date),
neither the Company nor any Selling Shareholder will issue any press releases
directly or indirectly and will hold no press conferences with respect to the
Company or its subsidiary, the financial condition, results of operations,
business, properties, assets or liabilities of the Company or its subsidiary, or
the offering of the Shares, without prior written notice to the Representatives.
The Company and each Selling Shareholder will agree with the Underwriters prior
to any other public communication, as to the nature and scope of such
communications and the limitations thereof.
9
(m) The Company will use its best efforts to obtain approval for and
maintain the quotation of the Shares on The Nasdaq Stock Market's National
Market ("NASDAQ").
(n) For a period of 180 days from the Effective Date, the Company will not,
directly or indirectly, sell, contract to sell or otherwise dispose of any
shares of Common Stock, any securities exchangeable for Common Stock or any
other rights to acquire such shares without your prior written consent, except
for the Shares sold hereunder and except for sales of shares of Common Stock to
the Company's employees pursuant to the exercise of options under the DTM
Corporation Stock Option Plan and the DTM Corporation Equity Appreciation Plan.
(o) For a period of 180 days from the Effective Date, neither Xxxxxxxx nor
any other Selling Shareholder will directly or indirectly sell, contract to sell
or otherwise dispose of any shares of Common Stock or rights to acquire such
shares without your prior written consent, except for the Shares sold hereunder.
(p) The Company and its subsidiary will maintain and keep accurate books and
records reflecting their assets and maintain internal accounting controls which
provide reasonable assurance that (1) transactions are executed in accordance
with management's authorization, (2) transactions are recorded as necessary to
permit the preparation of the Company's consolidated financial statements and to
maintain accountability for the assets of the Company and its subsidiary,
(3) access to the assets of the Company and its subsidiary is permitted only in
accordance with management's authorization, and (4) the recorded accounts of the
assets of the Company and its subsidiary are compared with existing assets at
reasonable intervals.
6. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase and pay for the Shares, as provided herein, shall
be subject to the accuracy in all material respects, as of the date hereof and
as of the Closing Date (and, if applicable, the Option Closing Date), of the
representations and warranties of the Company, Xxxxxxxx and the Selling
Shareholders contained herein, to the performance in all material respects by
the Company, Xxxxxxxx and the Selling Shareholders of their covenants and
obligations hereunder, and to the following additional conditions:
(a) All filings required by Rule 424 and Rule 430A of the Rules and
Regulations shall have been made. No stop order suspending the effectiveness of
the Registration Statement, as amended from time to time, shall have been issued
and no proceeding for that purpose shall have been initiated or, to the
knowledge of the Company or any Underwriter, threatened or contemplated by the
Commission, and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of the Underwriters.
(b) No Underwriter shall have disclosed in writing to the Company on or
prior to the Closing Date (and, if applicable, the Option Closing Date), that
the Registration Statement or Prospectus or any amendment or supplement thereto
contains an untrue statement of fact which, in the opinion of counsel to the
Underwriters, is material, or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(c) On the Closing Date (and, if applicable, the Option Closing Date), you
shall have received the opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the
Company, addressed to you and dated the Closing Date (and, if applicable, the
Option Closing Date), to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Texas, with
full corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Registration Statement; the
Company is duly qualified to do business as a foreign corporation in good
standing in each state or other jurisdiction in which its ownership or
leasing of property or conduct of business requires such qualification,
except where
10
the failure to be so qualified would not have a material adverse effect on
the ability of the Company to conduct its business as described in the
Registration Statement.
(ii) The Company's authorized capital stock is as set forth under the
heading "Capitalization" in the Prospectus; all outstanding shares of Common
Stock and the Shares conform to the description thereof in the Prospectus
under the heading "Description of Capital Stock", and the outstanding shares
of Common Stock have been duly authorized and are validly issued, fully paid
and non-assessable; the Shares to be sold by the Company have been duly
authorized and, when delivered and paid for in accordance with this
Agreement, will be validly issued, fully paid and non-assessable, and the
shareholders of the Company have no preemptive rights with respect to the
Shares.
(iii) The Registration Statement has become effective under the Act
and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act.
(iv) The Registration Statement and the Prospectus, and each amendment
or supplement thereto, as of their respective effective or issue date,
complied as to form in all material respects with the requirements of the
Act and the applicable rules and regulations (except that such counsel need
express no opinion as to the financial statements or other financial data).
(v) The descriptions in the Registration Statement and Prospectus of
contracts and other documents filed as exhibits to the Registration
Statement are accurate in all material respects.
(vi) No authorization, approval, consent, order, registration or
qualification of or with any court or governmental body, authority or agency
is required with respect to the Company in connection with the transactions
contemplated by this Agreement, except such as may be required under the Act
or the Rules and Regulations or as may be required by the NASD or under
state securities laws in connection with the purchase and distribution of
the Shares by the Underwriters.
(vii) The filing of the Registration Statement has been duly
authorized by the Board of Directors of the Company. This Agreement has been
duly authorized, executed and delivered by the Company. The performance of
this Agreement and the consummation of the transactions herein contemplated
will not result in a violation of the Company's articles of incorporation or
bylaws or result in a breach or violation of any of the terms and provisions
of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any properties or assets of the
Company and its subsidiary under, any statute, or under any indenture,
mortgage, deed of trust, note, loan agreement, sale and leaseback
arrangement, or any other agreement or instrument known to such counsel to
which the Company or its subsidiary is a party or by which they are bound or
to which any of the properties or assets of the Company or its subsidiary
are subject, or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the Company or
its subsidiary or their properties, except, in the case of any such
violation, breach, default, creation or imposition, to such extent as does
not materially adversely affect the business of the Company and its
subsidiary taken as a whole.
(viii) To the knowledge of such counsel, there are no contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement which are not described or filed as required.
(ix) The statements made in the Registration Statement under the
captions "Dividend Policy", "Capitalization" and "Description of Capital
Stock", to the extent that they constitute summaries of documents
11
referred to therein or matters of law or legal conclusions, have been
reviewed by such counsel and are accurate summaries and fairly present the
information disclosed therein.
(x) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent accountants of the Company and
representatives of the Underwriters and their counsel at which the contents of
the Registration Statement and Prospectus and related matters were discussed and
that in the course of such participation, no facts have come to their attention
that would lead them to believe that the Registration Statement, either at its
effective date or on the date hereof, contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus,
either at the time it was filed pursuant to Rule 424(b) or on the date hereof,
contains an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading (it being understood that such counsel shall express no comment
as to the financial statements and schedules and other financial data included
in the Registration Statement or the Prospectus).
(d) On the Closing Date (and, if applicable, the Option Closing Date), you
shall have received the opinion of Xxxxxxxx X. Xxxxxx, Associate General Counsel
of Xxxxxxxx, addressed to you and dated the Closing Date (and, if applicable,
the Option Closing Date), to the effect that:
(i) Xxxxxxxx has duly authorized, executed and delivered the Custody
Agreement and Power of Attorney, appointing D. Xxx Xxxxxx and Xxxx Bellary
as its Custodians with authority to take custody of and deliver the Shares
as represented by certificates on behalf of Xxxxxxxx in connection with the
transactions contemplated by this Agreement and the Custody Agreement and
appointing D. Xxx Xxxxxx and Xxxx Bellary as Xxxxxxxx'x attorneys-in-fact
with authority to execute and deliver this Agreement on behalf of Xxxxxxxx
and otherwise to act on behalf of Xxxxxxxx in connection with the
transactions contemplated by this Agreement and the Custody Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
on behalf of Xxxxxxxx, and is a valid and legally binding obligation of
Xxxxxxxx.
(iii) Xxxxxxxx has full legal right, power and authority, and any
approval required by law (other than as required by the Act, the NASD and
state securities and Blue Sky Laws) to sell, assign, transfer and deliver
the Shares to be sold by it.
(iv) No consent, approval, authorization or order of any court, or
governmental agency or body is required for consummation of the transactions
contemplated by this Agreement in connection with the Shares to be sold by
Xxxxxxxx hereunder except such as may be required under the Act or the Rules
and Regulations or as may be required by the NASD or under state securities
laws.
(v) Xxxxxxxx has good and valid title to the Shares being sold by it
hereunder, free and clear of all liens, mortgages, pledges, encumbrances,
claims, equities and security interests, and has transferred to the
Underwriters good and valid title to the Shares being sold by it on the
Option Closing Date, free and clear of all liens, mortgages, pledges,
encumbrances, claims, equities and security interests whatsoever.
(vi) To the knowledge of such counsel, (A) there are no material
(individually, or in the aggregate) legal, governmental or regulatory
proceedings pending or threatened to which the Company or its subsidiary is
a party or of which the business or properties of the Company or its
subsidiary is the subject which are not disclosed in the Registration
Statement and Prospectus and (B) there are no statutes or
12
regulations required to be described in the Registration Statement or
Prospectus which are not described as required.
In rendering the foregoing opinion, such counsel may rely, provided that the
opinion shall state that you and they are entitled to so rely, (1) as to matters
involving laws of any jurisdiction other than Texas or Federal law, upon
opinions addressed to the Underwriters of other counsel satisfactory to them and
Gardere & Xxxxx, L.L.P. (2) as to all matters of fact, upon certificates and
written statements of Xxxxxxxx or the Company.
(e) On the Closing Date, you shall have received the opinion of
________________, counsel to DTM Holdings Ltd. ("DTM Holdings") and Xx. Xxxxxx
X. Xxxxxx ("Xx. Xxxxxx"), addressed to you and dated the Closing Date, to the
effect that:
(i) Each of DTM Holdings and Xx. Xxxxxx has duly authorized, executed
and delivered the Custody Agreement, appointing D. Xxx Xxxxxx and Xxxx
Bellary as its Custodians with authority to take custody of and deliver the
Shares as represented by certificates on behalf of DTM Holdings and Xx.
Xxxxxx in connection with the transactions contemplated by this Agreement
and the Custody Agreement and appointing D. Xxx Xxxxxx and Xxxx Bellary as
DTM Holdings' attorneys-in-fact with authority to execute and deliver this
Agreement on behalf of DTM Holdings and Xx. Xxxxxx and otherwise to act on
behalf of DTM Holdings and Xx. Xxxxxx in connection with the transactions
contemplated by this Agreement and the Custody Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
on behalf of each of DTM Holdings and Xx. Xxxxxx, and is a valid and legally
binding obligation of DTM Holdings and Xx. Xxxxxx.
(iii) Each of DTM Holdings and Xx. Xxxxxx has full legal right, power
and authority, and any approval required by law (other than as required by
the Act, the NASD and state securities and Blue Sky Laws) to sell, assign,
transfer and deliver the Shares to be sold by it.
(iv) No consent, approval, authorization or order of any court, or
governmental agency or body is required for consummation of the transactions
contemplated by this Agreement in connection with the Shares to be sold by
DTM Holdings and Xx. Xxxxxx hereunder except such as may be required under
the Act or the Rules and Regulations or as may be required by the NASD or
under state securities laws.
(v) Each of DTM Holdings and Xx. Xxxxxx has good and valid title to
the Shares being sold by it hereunder, free and clear of all liens,
mortgages, pledges, encumbrances, claims, equities and security interests,
and has transferred to the Underwriters good and valid title to the Shares
being sold by it on the Closing Date, free and clear of all liens,
mortgages, pledges, encumbrances, claims, equities and security interests
whatsoever.
In rendering the foregoing opinion, such counsel may rely, provided that the
opinion shall state that you and they are entitled to so rely, (1) as to matters
involving laws of any jurisdiction other than Texas or Federal law, upon
opinions addressed to the Underwriters of other counsel satisfactory to them and
Gardere & Xxxxx, L.L.P. (2) as to all matters of fact, upon certificates and
written statements of DTM Holdings.
(f) You shall have received on the Closing Date (and, if applicable, the
Option Closing Date), from Gardere & Xxxxx, L.L.P., counsel to the Underwriters,
such opinion or opinions, dated the Closing Date (and, if applicable, the Option
Closing Date) with respect to the incorporation of the Company, the validity of
the Shares, the Registration Statement, the Prospectus and other related matters
as you may reasonably require; the Company and Selling Shareholders shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass on such matters.
13
(g) You shall have received at or prior to the Closing Date a memorandum or
memoranda, in form and substance satisfactory to you, with respect to the
qualification for offering and sale by the Underwriters of the Shares under
state securities or Blue Sky laws of such jurisdictions as the Underwriters may
have designated to the Company.
(h) On the business day immediately preceding the date of this Agreement and
on the Closing Date (and, if applicable, the Option Closing Date), you shall
have received from Ernst & Young LLP, a letter or letters, dated the date of
this Agreement and the Closing Date (and, if applicable, the Option Closing
Date), respectively, in form and substance satisfactory to you, confirming that
they are independent public accountants with respect to the Company within the
meaning of the Act and the published Rules and Regulations, and any information
set forth in the Registration Statement in response to Item 509 of Regulation S-
K is correct insofar as it relates to them, and stating to the effect set forth
in Schedule III hereto.
(i) Except as contemplated in the Prospectus, (i) neither the Company nor
its subsidiary shall have sustained since the date of the latest audited
financial statements included in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree; and (ii) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, neither
the Company nor its subsidiary shall have incurred any liability or obligation,
direct or contingent, or entered into transactions, and there shall not have
been any change in the capital stock or long-term debt of the Company and its
subsidiary or any change in the condition (financial or other), net worth,
business, affairs, management, prospects or results of operations of the Company
or its subsidiary, the effect of which, in any such case described in clause (i)
or (ii), is in your reasonable judgment so material or adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered on such Closing Date (and, if applicable, the
Option Closing Date) on the terms and in the manner contemplated in the
Prospectus.
(j) There shall not have occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or the establishing on such exchanges by
the Commission or by such exchanges of minimum or maximum prices which are not
in force and effect on the date hereof; (ii) a general moratorium on commercial
banking activities declared by either federal or state authorities; (iii) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this clause (iii) in your reasonable judgment
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares in the manner contemplated in the Prospectus; (iv) any
calamity or crisis, change in national, international or world affairs, act of
God, change in the international or domestic markets, or change in the existing
financial, political or economic conditions in the United States or elsewhere,
if the effect of any such event specified in this clause (iv) makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares in the manner contemplated in the Prospectus; or (v) the
enactment, publication, decree, or other promulgation of any federal or state
statute, regulation, rule, or order of any court or other governmental
authority, or the taking of any action by any federal, state or local government
or agency in respect of fiscal or monetary affairs, if the effect of any such
event specified in this clause (v) in your reasonable judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares in the manner contemplated in the Prospectus.
(k) You shall have received certificates, dated the Closing Date (and, if
applicable, the Option Closing Date) and signed by the President and the Chief
Financial Officer of the Company stating that (i) they have carefully examined
the Registration Statement and the Prospectus as amended or supplemented and
nothing has come to their attention that would lead them to believe that either
the Registration Statement or the Prospectus, or any amendment or supplement
thereto as of their respective effective or issue dates, contained, and the
Prospectus as amended or supplemented at such Closing Date, contains any untrue
statement of a material fact, or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, and, that (ii) all
representations and warranties made herein by the Company are true and correct
in all material respects at such Closing Date, with the same effect as if made
on and as of such
14
Closing Date, and all agreements herein to be performed by the Company on or
prior to such Closing Date have been duly performed in all material respects.
(l) You shall have received a certificate, dated the Closing Date (and, if
applicable, the Option Closing Date) and signed by the Selling Shareholders, to
the effect that all representations and warranties made herein by the Selling
Shareholders are true and correct in all material respects at such Closing Date,
with the same effect as if made on and as of such Closing Date, and all
agreements herein to be performed by the Selling Shareholders on or prior to
such Closing Date have been duly performed in all material respects.
(m) The Company and each of the Selling Shareholders shall not have failed,
refused, or been unable, at or prior to the Closing Date (and, if applicable,
the Option Closing Date) to have performed in all material respects any
agreement on their part to be performed or any of the conditions herein
contained and required to be performed or satisfied by them at or prior to such
Closing Date.
(n) The Shares shall have been approved for trading upon official notice of
issuance on NASDAQ.
All such opinions, certificates, letters and documents will be in compliance
with the provisions hereof only if they are reasonably satisfactory to you and
to Gardere & Xxxxx, L.L.P., counsel for the several Underwriters. The Company,
Xxxxxxxx and Selling Shareholders will furnish you with such conformed copies of
such opinions, certificates, letters and documents as you may request.
If any of the conditions specified above in this Section 6 shall not have
been satisfied at or prior to the Closing Date (and, if applicable, the Option
Closing Date) or waived by you in writing, this Agreement may be terminated by
you on notice to the Company and the Selling Shareholders.
7. Indemnification. (a) The Company will indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Act, against any losses, claims, damages, liabilities (or
actions in respect thereof), joint or several, to which such Underwriter or such
controlling person may become subject, under the Act or otherwise, insofar as
such losses, claims, damages, liabilities or actions arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or in any blue sky
application or other document executed by the Company or based on any
information furnished in writing by the Company, filed in any jurisdiction in
order to qualify any or all of the Shares under the securities laws thereof
("Blue Sky Application"), 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 light of the circumstances under
which they were made, not misleading; and will reimburse each Underwriter and
each such controlling person for any reasonable legal or other expenses
reasonably incurred by such Underwriter or such controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage, liability or action arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in the Registration Statement, such Preliminary
Prospectus or the Prospectus, or such amendment or supplement, or any Blue Sky
Application in reliance upon and in conformity with written information
furnished to the Company by you or by any Underwriter through you, or by any
Selling Shareholder, specifically for use in the preparation thereof; and
provided, further, that if any Preliminary Prospectus or the Prospectus
contained any alleged untrue statement or allegedly omitted to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading and such statement or omission shall have been corrected
in a revised Preliminary Prospectus or in the Prospectus or in an amended or
supplemented Prospectus, the Company shall not be liable to any Underwriter or
controlling person under this subsection (a) with respect to such alleged untrue
statement or alleged omission to the extent that any such loss, claim, damage,
liability or action of such Underwriter or controlling person results from the
fact that such Underwriter sold Shares to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, such revised
Preliminary Prospectus or Prospectus or amended or supplemented Prospectus.
This indemnity agreement shall be in addition to any liabilities which the
Company may
15
otherwise have. Notwithstanding the foregoing, the obligations of the Company
pursuant to this subsection (a) shall be limited to the Net Proceeds (as
hereinafter defined) received by the Company. Net Proceeds shall mean any and
all amounts of net proceeds from the offering (before deducting expenses) of the
Shares.
(b) Xxxxxxxx will indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of the Act,
against any losses, claims, damages, liabilities or actions in respect thereof,
joint or several, to which such Underwriter or such controlling person may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or in any Blue Sky Application, 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 light of the circumstances under which they were made, not misleading; and
will reimburse each Underwriter and each such controlling person for any
reasonable legal or other expenses reasonably incurred by such Underwriter or
such controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that Xxxxxxxx shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, such Preliminary Prospectus or the Prospectus, or such
amendment or supplement, or any Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company by you or by any
Underwriter through you, or by any other Selling Shareholder, specifically for
use in the preparation thereof; and provided, further, that if any Preliminary
Prospectus or the Prospectus contained any alleged untrue statement or allegedly
omitted to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and such statement or
omission shall have been corrected in a revised Preliminary Prospectus or in the
Prospectus or in an amended or supplemented Prospectus, Xxxxxxxx shall not be
liable to any Underwriter or controlling person under this subsection (b) with
respect to such alleged untrue statement or alleged omission to the extent that
any such loss, claim, damage or liability of such Underwriter or controlling
person results from the fact that such Underwriter sold Shares to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, such revised Preliminary Prospectus or Prospectus or amended or
supplemented Prospectus. This indemnity agreement shall be in addition to any
liabilities which Xxxxxxxx may otherwise have. Notwithstanding the foregoing,
the obligations of Xxxxxxxx pursuant to this subsection (b) shall be limited to
the Net Proceeds received by Xxxxxxxx and the Company, collectively, for the
Shares.
(c) DTM Holdings and Xx. Xxxxxx will indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter or controlling person 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
the Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or any Blue Sky Application 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 the Registration Statement, such Preliminary Prospectus or the
Prospectus, or such amendment or supplement, or any Blue Sky Application, in
reliance upon and in conformity with written information furnished to the
Company or any Underwriter by DTM Holdings or Xx. Xxxxxx specifically for use in
the preparation thereof; and will reimburse any reasonable legal or other
expenses reasonably incurred by each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the Act, in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity contained in this subsection (c) with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) in
respect of any action or claim asserted by a person who purchased any Shares
from such Underwriter, if, within the time required by the Act such person was
not sent or given a copy of the Prospectus, as then amended or supplemented.
This indemnity agreement shall be in addition to any liabilities which DTM
Holdings
16
or Xx. Xxxxxx may otherwise have. Notwithstanding the foregoing, the
obligations of each of DTM Holdings and Xx. Xxxxxx pursuant to this subsection
(c) shall be limited to the Net Proceeds received by it or him for the Shares.
(d) Each Underwriter will indemnify and hold harmless the Company, each of
its directors, each of its officers who have signed the Registration Statement,
Xxxxxxxx, and each other person, if any, who controls the Company within the
meaning of the Act, and each Selling Shareholder, against any losses, claims,
damages or liabilities, joint or several, to which the Company or any such
director or officer, Xxxxxxxx or other controlling person or any such Selling
Shareholder may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, any amendment or supplement thereto, or any Blue Sky
Application 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, in 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 the Registration Statement, such Preliminary
Prospectus or the Prospectus, such amendment or supplement, or any Blue Sky
Application in reliance upon and in conformity with written information
furnished to the Company by any such Underwriter specifically for use in the
preparation thereof; and will reimburse any reasonable legal or other expenses
reasonably incurred by the Company or any such director or officer, Xxxxxxxx or
other controlling person or any such Selling Shareholder in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement shall be in addition to any liabilities which the
Underwriters may otherwise have. Notwithstanding the foregoing, the obligations
of each Underwriter pursuant to this subsection (d) shall be limited to the
underwriting discounts and commissions applicable to the Shares purchased by
each such Underwriter.
(e) Any party which proposes to assert the right to be indemnified under
this Section 7 shall, within ten days after receipt of notice of commencement of
any action, suit or proceeding against such party in respect of which a claim is
to be made against an indemnifying party under this Section 7, notify each such
indemnifying party of the commencement of such action, suit or proceeding,
enclosing a copy of all papers served, but the omission so to notify such
indemnifying party of any such action, suit or proceeding shall not relieve such
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Section 7, except to the extent the indemnifying party
is actually prejudiced thereby. In case any such action, suit or proceeding
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any reasonable legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such indemnified
party in connection with the defense thereof. The indemnified party shall have
the right to employ its own counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel by such indemnified party at the expense of
the indemnifying party has been authorized by the indemnifying party, (ii) the
indemnified party shall have been advised by such counsel in a written opinion
that there may be a conflict of interest between the indemnifying party and the
indemnified party in the conduct of the defense, or certain aspects of the
defense, of such action (in which case the indemnifying party shall not have the
right to direct the defense of such action with respect to those matters or
aspects of the defense on which a conflict exists or may exist on behalf of the
indemnified party) or (iii) the indemnifying party shall not in fact have
employed counsel to assume the defense of such action, in any of which events
such fees and expenses to the extent applicable shall be borne by the
indemnifying party. An indemnifying party shall not be liable for any settlement
of any action or claim effected without its consent. Each indemnified party, as
a condition of such indemnity, shall cooperate in good faith with the
indemnifying party in the defense of any such action or claim.
(f) If the indemnification provided for in this Section 7 is, for any reason
other than pursuant to the terms thereof, judicially determined (by the entry of
a final judgment or decree by a court of competent jurisdiction
17
and the expiration of time to appeal or the denial of the last right to appeal)
to be unavailable to an indemnified party under subsections (a), (b), (c) or (d)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company, the Selling
Shareholders and the Underwriters from the offering of the Shares. For purposes
of this subsection (f), all benefits received by the Company shall be deemed to
have been received jointly by the Company and Xxxxxxxx. If, however, the
allocation provided by the immediately preceding sentences is not permitted by
applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault, as
applicable, of the Company, Xxxxxxxx, the Selling Shareholders and the
Underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as
well as other relevant equitable considerations. The relative benefits received
by, as applicable, the Company, the Selling Shareholders and the Underwriters
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company and the Selling
Shareholders bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company, Xxxxxxxx, the Selling Shareholders or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, Xxxxxxxx, the Selling
Shareholders and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (f) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (f). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (f) shall be deemed to include any reasonable legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the foregoing, (i) the
obligations of the Company pursuant to this subsection (f) shall be limited to
the Net Proceeds received by the Company for Shares, (ii) the obligations of
Xxxxxxxx pursuant to this subsection (f) shall be limited to the Net Proceeds
received by Xxxxxxxx and the Company, collectively, for the Shares and (iii) the
obligations of each of DTM Holdings and Xx. Xxxxxx pursuant to this subsection
(f) shall be limited to the Net Proceeds received by it or him for the Shares.
Notwithstanding the provisions of this subsection (f), no Underwriter shall be
required to contribute any amount in excess of the underwriting discounts and
commissions applicable to the Shares purchased by such Underwriter. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (f) to contribute are several in proportion to their respective
underwriting obligations and not joint.
8. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Company and the Selling
Shareholders contained herein, including but not limited to those contained in
Sections 7 and 11 herein or in certificates delivered pursuant hereto, all the
representations, warranties, and agreements of Xxxxxxxx contained herein,
including but not limited to those contained in Section 7 hereof or in
certificates delivered pursuant hereto, and the agreements of the Underwriters
contained herein, including but not limited to those contained in Section 7
hereof, shall remain operative and in full force and effect regardless of any
termination or cancellation of this Agreement or any investigation made by or on
behalf of any Underwriter or any controlling person, the Company or any of its
officers, directors or any controlling persons, or the Selling Shareholders, and
shall survive delivery of the Shares to the Underwriters hereunder until barred
by applicable statutes of limitation with respect thereto.
9. Substitution of Underwriters. (a) If any Underwriter shall default in
its obligation to purchase the Shares which it has agreed to purchase hereunder,
you may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default
18
by any Underwriter you do not arrange for the purchase of such Shares, then the
Company and the Selling Shareholders shall be entitled to a further period of
thirty-six hours within which to procure another party or parties reasonably
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Company and the Selling
Shareholders that you have so arranged for the purchase of such Shares, or the
Company and the Selling Shareholders notify you that they have so arranged for
the purchase of such Shares, you or the Company and the Selling Shareholders
shall have the right to postpone the Closing Date for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any persons substituted under this Section 9 with like effect as if such person
had originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters made by you or the Company
and the Selling Shareholders as provided in subsection (a) above, the aggregate
number of Shares which remains unpurchased does not exceed one tenth of the
total Shares to be sold on the Closing Date, then the Company and the Selling
Shareholders shall have the right to require each non-defaulting Underwriter to
purchase the Shares which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters made by you or the Company
and the Selling Shareholders as provided in subsection (a) above, the number of
Shares which remains unpurchased exceeds one tenth of the total Shares to be
sold on the Closing Date, or if the Company and the Selling Shareholders shall
not exercise the right described in subsection (b) above to require the non-
defaulting Underwriters to purchase Shares of the defaulting Underwriter or
Underwriters, then this Agreement shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company and the Selling
Shareholders except for the expenses to be borne by the Company and the
Underwriters as provided in Section 11 hereof and the indemnity and contribution
agreements in Section 7 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. Effective Date and Termination. (a) This Agreement shall become
effective at 1:00 p.m., St. Louis time, on the first business day following the
effective date of the Registration Statement, or at such earlier time after the
effective date of the Registration Statement as you in your discretion shall
first release the Shares for offering to the public; provided, however, that the
provisions of Sections 7 and 11 shall at all times be effective. For the
purposes of this Section 10(a), the Shares shall be deemed to have been released
to the public upon release by you of the publication of a newspaper
advertisement relating to the Shares or upon release of telegrams, facsimile
transmissions or letters offering the Shares for sale to securities dealers,
whichever shall first occur.
(b) This Agreement may be terminated by you at any time before it becomes
effective in accordance with Section 10(a) by notice to the Company, Xxxxxxxx
and the Selling Shareholders; provided, however, that the provisions of this
Section 10 and of Section 7 and Section 11 hereof shall at all times be
effective. In the event of any termination of this Agreement pursuant to Section
9 or this Section 10(b) hereof, the Company, Xxxxxxxx and the Selling
Shareholders shall not then be under any liability to any Underwriter except as
provided in Section 7 or Section 11 hereof.
(c) This Agreement may be terminated by you at any time at or prior to the
Closing Date by notice to the Company and the Selling Shareholders if any
condition specified in Section 6 hereof shall not have been satisfied on or
prior to the Closing Date. Any such termination shall be without liability of
any party to any other party except as provided in Sections 7 and 11 hereof.
19
(d) This Agreement also may be terminated by you, by notice to the Company
and the Selling Shareholders, as to any obligation of the Underwriters to
purchase the Option Shares, if any condition specified in Section 6 hereof shall
not have been satisfied at or prior to the Option Closing Date or as provided in
Section 9 of this Agreement.
If you terminate this Agreement as provided in Sections 10(b), 10(c) or
10(d), you shall notify the Company and the Selling Shareholders by telephone or
telegram, confirmed by letter.
11. Costs and Expenses. The Company and the Selling Shareholders will bear
and pay the costs and expenses incident to the registration of the Shares and
public offering thereof, including, without limitation, (a) the fees and
expenses of the Company's accountants and the fees and expenses of counsel for
the Company, (b) the preparation, printing, filing, delivery and shipping of the
Registration Statement, each Preliminary Prospectus, the Prospectus and any
amendments or supplements thereto (except as otherwise expressly provided in
Section 5(d) hereof) and the printing, delivery and shipping of this Agreement,
the Agreement Among Underwriters, the Selected Dealer Agreement, Underwriters'
Questionnaires and Powers of Attorney and Blue Sky Memoranda, (c) the furnishing
of copies of such documents (except as otherwise expressly provided in Section
5(d) hereof) to the Underwriters, (d) the registration or qualification of the
Shares for offering and sale under the securities laws of the various states,
including the reasonable fees and disbursements of Underwriters' counsel
relating to such registration or qualification, (f) the fees payable to the NASD
and the Commission in connection with their review of the proposed offering of
the Shares, (f) all printing and engraving costs related to preparation of the
certificates for the Shares, including transfer agent and registrar fees,
(g) all initial transfer taxes, if any, (h) all fees and expenses relating to
the authorization of the Shares for trading on NASDAQ, (i) all travel expenses,
including air fare and accommodation expenses, of representatives of the Company
in connection with the offering of the Shares and (j) all of the other costs and
expenses incident to the performance by the Company of the registration and
offering of the Shares; provided, however, that the Underwriters will bear and
pay the fees and expenses of the Underwriters' counsel (other than fees and
disbursements relating to the registration or qualification of the Shares for
offering and sale under the securities laws of the various states), the
Underwriters' out-of-pocket expenses, and any advertising costs and expenses
incurred by the Underwriters incident to the public offering of the Shares; and
provided, further, that the Selling Shareholders will bear and pay the fees and
expenses of the Selling Shareholders' counsel.
If this Agreement is terminated by you in accordance with the provisions of
Section 10(c), the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel to the Underwriters.
12. Default of Selling Shareholders. Failure or refusal by any of the
Selling Shareholders to sell and deliver on the Closing Date the Shares agreed
to be sold and delivered by such Selling Shareholder shall in no manner relieve
the other Selling Shareholders or the Company of their respective obligations
under this Agreement. If any Selling Shareholder should fail or refuse to sell
and deliver his Shares, the remaining Selling Shareholders shall have the right
hereby granted to increase, pro rata or otherwise, the number of Shares to be
sold by them hereunder to the total number of Shares to be sold by all Selling
Shareholders as set forth in Schedule I. If the remaining Selling Shareholders
do not fully exercise the right to increase the number of Shares to be sold by
them, the Underwriters, at your option, will have the right to elect to purchase
or not to purchase the Shares to be sold by the Company and the remaining
Selling Shareholders. In the event the Underwriters purchase the Shares of the
Company and such other Selling Shareholders pursuant to this Section 12, the
Closing Date shall be postponed for a period of not more than seven days in
order that the Registration Statement and Prospectus or other documents may be
amended or supplemented to the extent necessary under the provisions of the Act
and the Rules and Regulations or under the securities laws of any jurisdiction.
If the Underwriters determine not to purchase the Shares of the Company and the
other Selling Shareholders, if any, this Agreement shall terminate and neither
the Company nor the Underwriters nor any other Selling Shareholder shall be
under any obligation under this Agreement except as provided in Section 7 hereof
and except for the obligation of the Company to pay for such expenses as are set
forth in Section 11 hereof. Nothing herein shall relieve a defaulting Selling
Shareholder from liability for his default or from liability under Section 7
hereof or for expenses imposed by this Agreement upon such Selling Xxxxxxxxxxx.
00
00. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to the
Underwriters shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed c/o X. X. Xxxxxxx & Sons, Inc. at Xxx Xxxxx Xxxxxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Syndicate, facsimile number (314)
955-7387, with a copy to Gardere & Xxxxx, L.L.P., 0000 Xxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, Attention: Xxxx X. Xxxx, facsimile number (000) 000-0000;
or if sent to the Company shall be mailed, delivered, sent by facsimile
transmission, or telegraphed and confirmed to the Company at 0000 Xxxxxxx
Xxxxxx, Xxxxxxxx 0, Xxxxxx, Xxxxx 00000, Attention: Chief Executive Officer,
facsimile number (000) 000-0000, with a copy to Xxxxxxxx at 0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx, Xxxx 00000-0000, Attention: Legal Department, facsimile
number (000) 000-0000; or if sent to Xxxxxxxx shall be mailed, delivered, sent
by facsimile transmission, or telegraphed and confirmed to Xxxxxxxx at 0000
Xxxxxxx Xxxxx Xxxxxxx, Xxxxxxxxx, Xxxx 00000-0000, Attention: Legal Department,
facsimile number (000) 000-0000; or if sent to any Selling Shareholder shall be
mailed, delivered, sent by facsimile transmission or telegraphed and confirmed
to such Selling Shareholder, to the Attorneys-in-Fact at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxx 0, Xxxxxx, Xxxxx 00000, Attention D. Xxx Xxxxxx and Uday Bellary.
Notice to any Underwriter pursuant to Section 7 shall be mailed, delivered, sent
by facsimile transmission, or telegraphed and confirmed to such Underwriter's
address as it appears in the Underwriters' Questionnaire furnished in connection
with the offering of the Shares or as otherwise finished to the Company and the
Selling Shareholder.
14. Parties. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Selling Shareholders, and the Company and Xxxxxxxx
and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, corporation
or other entity, other than the parties hereto and their respective successors
and assigns and the controlling persons, officers and directors referred to in
Section 7, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained; this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of the parties hereto and their respective successors and
assigns and said controlling persons and said officers and directors, and for
the benefit of no other person, corporation or other entity. No purchaser of any
of the Shares from any Underwriter shall be construed a successor or assign by
reason merely of such purchase.
In all dealings with the Company, Xxxxxxxx and the Selling Shareholders
under this Agreement you shall act on behalf of each of the several
Underwriters; and the Company, Xxxxxxxx, and the Selling Shareholders shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of the Underwriters, made or given by you on behalf of the Underwriters,
as if the same shall have been made or given in writing by the Underwriters.
15. Counterparts. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
16. Pronouns. Whenever a pronoun of any gender or number is used herein,
it shall, where appropriate, be deemed to include any other gender and number.
17. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Missouri.
21
If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among the Company, Xxxxxxxx, each of the
Selling Shareholders and the Underwriters.
DTM CORPORATION
By:
-----------------------------------------
Title:
--------------------------------------
THE X.X. XXXXXXXX COMPANY
By:
-----------------------------------------
Title:
--------------------------------------
Selling Shareholders Named in Schedule I Hereto
By:
-----------------------------------------
Attorney-in-Fact
Accepted in St. Louis,
Missouri as of the date
first above written, on
behalf of ourselves and each
of the several Underwriters
named in Schedule II hereto.
X. X. XXXXXXX & SONS, INC.
LADENBURG XXXXXXXX & CO. INC.
By: X.X. XXXXXXX & SONS, INC.
By:
-------------------------------
Title: Vice President
22
SCHEDULE I
Number of
Selling Shareholder Firm Shares
------------------- -----------
DTM Holdings Ltd................................................... 249,467
Xx. Xxxxxx X. Xxxxxx............................................... 3,285
Total 252,752
-------
23
SCHEDULE II
Name Number of Shares
---- ----------------
X. X. Xxxxxxx & Sons, Inc....................................
Ladenburg Xxxxxxxx & Co. Inc.................................
Total
=========
SCHEDULE III
Pursuant to Section 6(g) of the Underwriting Agreement, Ernst & Young LLP
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiary within the meaning of the Act and the
applicable Rules and Regulations thereunder.
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, prospective
financial statements and/or pro forma financial information examined) by them
and included in the Prospectus or the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of the Act
and the applicable Rules and Regulations thereunder; and, if applicable, they
have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited consolidated interim
financial statements, selected financial data, pro forma financial information,
prospective financial statements and/or condensed financial statements derived
from audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have been
furnished to the Representatives of the Underwriters (the "Representatives").
(iii) On the basis of limited procedures, not constituting an audit
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information referred to
below, performing the procedure specified by the AICPA for a review of interim
financial information as discussed in SAS No. 71, Interim Financial Information,
on the latest available interim financial statements of the Company and its
subsidiary, inspection of the minute books of the Company and its subsidiary
since the date of the latest audited financial statements included in the
Prospectus, inquiries of officials of the Company and its subsidiary responsible
for financial and accounting matters and such other inquiries and procedures as
may be specified in such letter, nothing came to their attention that caused
them to believe that:
(A) any material modifications should be made to the unaudited
statements of consolidated income, statements of consolidated
financial position and statements of consolidated cash flows included
in the Prospectus for them to be in conformity with generally accepted
accounting principles, or the unaudited statements of consolidated
income, statements of consolidated financial position and statements
of consolidated cash flows included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations thereunder.
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included in the Prospectus.
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived any unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus.
(D) any unaudited pro forma consolidated financial statements
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical amounts
in the compilation of those statements.
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock or any increase in the consolidated long-term debt of
the Company and its subsidiary, or any decreases in net current assets
or net assets or other items specified by the Representatives, or any
changes in any items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet included in
the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter.
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred
to in Clause (E) there were any decreases in consolidated net revenues
or operating profit or the total or per share amounts of consolidated
net income or any other changes in any other items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
changes, decreases or increases which the Prospectus discloses have
occurred or may occur or which are described in such letter.
(iv) In addition to the audit referred to in their report(s) included
in the Prospectus and the limited procedures, inspection of minute books,
inquiries and other procedures referred to in paragraph (iii) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Representatives,
which are derived from the general accounting records of the Company and its
subsidiary for the periods covered by their reports and any interim or other
periods since the latest period covered by their reports, which appear in the
Prospectus, or in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the accounting records of
the Company and its subsidiary and have found them to be in agreement.
