DT INDUSTRIES, INC.
Common Stock
($0.01 Par Value Per Share)
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT made as of the 25th day of November, 1996, by
and among DT Industries, Inc., a Delaware corporation (the "Company"), and the
undersigned, Peer Investors L.P., a Delaware limited partnership, Peer Investors
II L.P., a Delaware limited partnership, Harbour Group II Management Co., a
Missouri corporation, Harbour Group Investments II, L.P., a Delaware limited
partnership, and the Fox Family Foundation, a Missouri trust (collectively, the
"Selling Stockholders").
WHEREAS, the Company has filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Act of 1933, as amended
(the "Act"), a Registration Statement (as finally declared effective, the
"Registration Statement") on Form S-3 (File No. 333-14955) pursuant to which the
Company and the Selling Stockholders propose to sell to the public an aggregate
of 5,085,000 shares of the Company's Common Stock through several underwriters
led by CS First Boston Corporation, Xxxxxx Xxxxxxx & Co. Incorporated and
Xxxxxxxx Wertheim & Co. Incorporated and certain of their respective affiliates
(collectively the "Underwriters"), in connection with an offering pursuant to an
underwriting agreement (the "Underwriting Agreement") and a subscription
agreement (the "Subscription Agreement") to be entered into by the Company, the
Selling Stockholders and the Underwriters. In addition, the Company proposes to
grant the Underwriters an option to purchase up to an additional 312,500 shares
of the Company's Common Stock solely to cover over-allotments; and the Selling
Stockholders propose to grant the Underwriters an option to purchase up to an
additional 450,250 shares of the Company's Common Stock solely to cover
over-allotments.
WHEREAS, the Underwriting Agreement and the Subscription Agreement,
respectively, contain certain provisions with respect to the obligations and
liabilities between the Company and the Selling Stockholders on the one hand and
the Underwriters on the other.
WHEREAS, the Underwriters require the Selling Stockholders to agree to
indemnify the Company and the Underwriters for certain liabilities.
WHEREAS, that certain Letter Agreement dated as of March 18, 1994 (the
"Registration Rights Agreement") between the Company and certain of the Selling
Stockholders requires the Company and the Selling Stockholders to indemnify each
other for certain liabilities.
WHEREAS, the Company and the Selling Stockholders desire to set forth
the obligations and liabilities between and among each other arising out of
their respective obligations and liabilities under the Underwriting Agreement,
the Subscription Agreement and the Registration Rights Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. The Company agrees to indemnify and hold harmless each of the
Selling Stockholders and each person, if any, who controls each Selling
Stockholder within the meaning of the Act, against any losses, claims, damages
or liabilities, joint or several, to which any such 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, the forms of prospectus first filed with the
Commission pursuant to and in accordance with Rule 424(b) under the Act or (if
no such filing is required) as contained in the Registration Statement,
including all material incorporated by reference in each such prospectus (each,
a "Prospectus" and, collectively, "Prospectuses"), or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements therein not
misleading; and the Company will reimburse each Selling Stockholder and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Selling Stockholder or any controlling person thereof
specifically for use therein it being understood and agreed that the only such
information is that described as such in Section 2 hereof; and provided further
that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus, the indemnity
agreement contained in this Section 1 shall not inure to the benefit of any
entity or firm or any controlling person thereof from whom the person asserting
such losses, claims, damages or liabilities purchased the shares of Common Stock
concerned, to the extent that any such loss, claim, damage or liability of such
entity, firm or controlling person results from the fact that there was not sent
or given to such person, at or prior to the written confirmation of the sale of
such shares of Common Stock to such person, a copy of the Prospectus, if
required by the Act.
2. Each Selling Stockholder agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the Registration Statement and each person, if any, who
controls the Company within the meaning of the Act against any losses, claims,
damages or liabilities, joint or several, to which any such 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 or alleged untrue statement of any material fact contained in the
Registration Statement, either of the Prospectuses, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements therein not
misleading; in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by the Selling Stockholder specifically for use therein it being
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understood and agreed that the only information furnished by any Selling
Stockholder consists of information concerning such Selling Stockholder set
forth under the caption "Principal and Selling Stockholders" and in the first
paragraph under the caption "Risk Factors -- Surrender of Voting Control by
Controlling Stockholders" in the Prospectuses; and the Selling Stockholder will
reimburse any legal and other expenses reasonably incurred by the Company, any
such director, officer or controlling person thereof in connection with
investigating or defending any such loss, claim, damage or liability or action
as such expenses are incurred; provided, however, that with respect to any
untrue statement or omission or alleged untrue statement or omission made in any
preliminary prospectus, the indemnity agreement contained in this Section 2
shall not inure to the benefit of any entity, firm or control persons thereof
from whom the person asserting such losses, claims, damages or liabilities
purchased the shares of Common Stock concerned, to the extent that any such
loss, claim, damage or liability of such entity, firm or control persons results
from the fact that there was not sent or given to such person, at or prior to
the written confirmation of the sale of such shares of Common Stock to such
person, a copy of the Prospectus, if required by the Act.
3. Promptly after receipt by an indemnified party under this
Agreement of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying party
under this Agreement, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
liability which it may have to any indemnified party pursuant to Sections 1 or 2
of this Agreement, except to the extent that it was unaware of such action and
has been materially prejudiced by such failure, or from any liability which it
may have to any indemnified party otherwise than pursuant to Sections 1 and 2 of
this Agreement. In case any such action is brought against any indemnified party
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
the indemnifying party desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. In no event shall the
indemnifying party be liable for the fees and expenses of more than one counsel
(in addition to any local counsel) for all such indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same set of allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party and
indemnify could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
4. If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under Sections
1 or 2 above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in Section 1 or 2 above (i) in such proportion as is
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appropriate to reflect the relative benefits received by the indemnifying party
on the one hand and the indemnified party on the other from the offering of the
Common Stock or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the indemnifying party on the one hand and the indemnified party on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the indemnifying party on the
one hand and the indemnified party on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the indemnifying party and the indemnified party. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by any
party as a result of the losses, claims, damages, or liabilities referred to in
the first sentence of this Section shall be deemed to include any legal or other
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim which is the subject of this Section. 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.
5. The obligations of the Company and the Selling Stockholders
under this Agreement shall be in addition to any liability which the Company and
the Selling Stockholders may otherwise have.
6. In the event the Company and the Selling Stockholders shall be
liable to reimburse the Underwriters for out-of-pocket expenses incurred by the
Underwriters as a consequence of the refusal, failure or inability by the
Company or any Selling Stockholder to perform any undertaking or obligation
required to be performed by the Underwriting Agreement or the Subscription
Agreement, the Company and each of the Selling Stockholder agree that the person
who fails to perform its respective obligations shall be liable to the parties
who have not defaulted in their obligations under the Underwriting Agreement or
the Subscription Agreement for all amounts required to be paid by the Company
and the Selling Stockholders pursuant to the Underwriting Agreement or the
Subscription Agreement.
7. Any notice, claim or demand hereunder shall be made in writing
and shall be sufficient if given as provided in the Underwriting Agreement.
8. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
9. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to such jurisdiction's
conflicts of laws principles.
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10. Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxx shall act for the
Selling Stockholders in connection with this Agreement and the transactions
contemplated hereby and by the Underwriting Agreement and the Subscription
Agreement, and any action taken by either of them under or in respect of this
Agreement will be binding upon all of the Selling Stockholders.
11. This Agreement may be executed by one or more parties hereto in
any number of counterparts, each of which shall be deemed to be an original, but
all of which shall be deemed to be one and the same instrument.
12. Except as otherwise specifically defined herein, all capitalized
terms used in this Agreement shall have the meanings assigned such terms in the
Underwriting Agreement.
IN WITNESS WHEREOF, the parties below have caused the foregoing to be
executed on their behalf this 25th day of November, 1996.
DT INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: VP-Finance
THE SELLING STOCKHOLDERS NAMED IN
THE FIRST PARAGRAPH HEREOF, ACTING
SEVERALLY
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Attorney-in-fact
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