1,400,000
DT Capital Trust
7.16% Convertible Preferred Securities
(liquidation preference $50 per
Convertible Preferred Security)
guaranteed to a limited extent by, and
convertible into Common Stock of,
DT Industries, Inc.
PURCHASE AGREEMENT
June 12, 1997
TO THE PURCHASERS WHOSE NAMES APPEAR IN
THE ACCEPTANCE FORM AT THE END HEREOF:
Dear Sirs:
1. Introductory. DT Capital Trust, a statutory business trust formed under
the laws of the State of Delaware (the "Trust") and DT Industries, Inc., a
Delaware corporation, as depositor of the Trust and as guarantor (the
"Guarantor"), propose, subject to the terms and conditions stated herein, that
the Trust issue and sell to the several purchasers named in Schedule A hereto
(the "Purchasers"), an aggregate of 1,400,000 of its 7.16% Convertible Preferred
Securities (liquidation preference $50 per Convertible Preferred Security) (the
"Preferred Securities") representing undivided beneficial ownership interests in
the assets of the Trust, guaranteed by the Guarantor as to the payment of
distributions, and as to payments on liquidation or redemption, to the extent
set forth in a guarantee agreement (the "Guarantee") between the Guarantor and
The Bank of New York, as trustee (the "Guarantee Trustee"). The proceeds of the
sale by the Trust of the Preferred Securities and its Common Securities
(liquidation preference $50 per common security) (the "Common Securities") are
to be invested in 7.16% Convertible Junior Subordinated Deferrable Interest
Debentures Due 2012 (the "Convertible Junior Subordinated Debentures") of the
Guarantor, to be issued pursuant to an Indenture (the "Indenture") between the
Guarantor and The Bank of New York, as trustee (the "Debenture Trustee"). The
Preferred Securities are effectively convertible into shares of Common Stock,
par value $.01 per share (the "Common Stock"), of the Guarantor. Holders
(including subsequent transferees) of the Preferred Securities will have the
registration rights set forth in
2
the Registration Rights Agreement (the "Registration Rights Agreement") to
be entered into among the Trust, the Guarantor and the Purchasers. Pursuant to
the Registration Rights Agreement, the Guarantor and the Trust have agreed to
file with the Securities and Exchange Commission (the "Commission") a shelf
registration statement (the "Shelf Registration Statement") pursuant to Rule 415
under the Securities Act of 1933, as amended (the "Securities Act"), to register
sales of the Preferred Securities, the Guarantee, the Convertible Junior
Subordinated Debentures and the shares of Common Stock issuable upon conversion
thereof (collectively, the "Securities") following the sale of the Preferred
Securities contemplated hereby.
Each of the Trust and the Guarantor hereby agrees with the Purchasers as
follows:
2. Representations and Warranties of the Trust and the Guarantor. Each of
the Trust and the Guarantor jointly and severally represents and warrants to,
and agrees with, the Purchasers that:
(a) An offering memorandum relating to the Preferred Securities
has been prepared by the Trust and the Guarantor and furnished to each
Purchaser. Such offering memorandum, as supplemented as of the date of
this Agreement, together with any other document approved by the
Guarantor for use in connection with the contemplated sale of the
Preferred Securities or incorporated by reference thereto are
hereinafter collectively referred to as the "Offering Document". On
the date of this Agreement, the Offering Document does not include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Except as
disclosed in the Offering Document, on the date of this Agreement, the
Guarantor's Annual Report on Form 10-K most recently filed with the
Commission and all reports (collectively, the "Exchange Act Reports"
including all amendments thereto) which have been filed by the
Guarantor with the Commission or sent to stockholders pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") since July 1,
1996, copies of which have been made available to the Purchasers,
taken together do not include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. Such documents, when filed with the
3
Commission, conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder.
(b) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act
of the State of Delaware (the "Delaware Business Trust Act") with the
power and authority to own property and conduct its business as
described in the Offering Document, and has conducted and will conduct
no business other than the transactions contemplated by this Agreement
and as described in the Offering Document; the Trust is not a party to
or bound by any agreement or instrument other than this Agreement, the
Amended and Restated Declaration of Trust (the "Trust Agreement")
between the Guarantor and the trustees named therein (the "Trustees")
and the agreements and instruments contemplated by the Trust Agreement
and the Offering Document; the Trust has no liabilities or obligations
other than those arising out of the transactions contemplated by this
Agreement and the Trust Agreement and described in the Offering
Document; and the Trust is not a party to or subject to any action,
suit or proceeding of any nature.
(c) The Guarantor has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Offering Document; and
the Guarantor is duly qualified to do business and in good standing as
a foreign corporation in each jurisdiction in which its ownership of
property or the conduct of its business requires such qualification
except where the failure to be so qualified or in good standing, as
the case may be, will not, individually, or in the aggregate, have a
material adverse effect on the assets, operations or condition
(financial or otherwise) of the Guarantor and its subsidiaries taken
as a whole (a "Material Adverse Effect").
(d) Each subsidiary of the Guarantor that is a "significant
subsidiary" (as defined in Rule 1-02 of Regulation S-X of the
Comission) or that is listed on Exhibit I hereto (each of the
foregoing being referred to as a "Significant Subsidiary") has been
duly incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with power
and authority (corporate and
4
other) to own its properties and conduct its business as described in
the Offering Document; and each significant subsidiary of the
Guarantor is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except with respect to such subsidiaries and
jurisdictions where the failure to be so qualified or in good
standing, as the case may be, will not, individually or in the
aggregate, have a Material Adverse Effect; all of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued and is fully paid and nonassessable; and
the capital stock of each Significant Subsidiary owned by the
Guarantor, directly or through subsidiaries, is owned free from liens,
encumbrances and defects, except insofar as such stock has been
pledged, pursuant to credit agreements filed with the Commission, to
secure obligations of the Guarantor and its subsidiaries to their
respective senior lenders.
(e)The Preferred Securities have been duly and validly authorized
by the Trust, and, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued and fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust and will conform to the description thereof contained in the
Offering Document; the issuance of the Preferred Securities is not
subject to preemptive or other similar rights; the Preferred
Securities will have the rights set forth in the Trust Agreement, and
the Preferred Securities when issued and delivered against payment
therefor as provided herein, will be, valid and binding obligations of
the Trust; the holders of the Preferred Securities will be entitled to
the same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware.
(f) The Common Securities have been duly and validly authorized
by the Trust and upon delivery by the Trust to the Guarantor against
payment therefor as described in the Offering Document, will be duly
and validly issued and fully paid and nonassessable undivided
beneficial interests in the assets of the Trust and will conform to
the description thereof contained in the Offering Document; the
issuance of the Common Securities is not subject to preemptive or
other similar rights; and all of the issued and outstanding
5
Common Securities of the Trust will be directly owned by the Guarantor
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(g) The Registration Rights Agreement has been duly authorized by
the Trust and the Guarantor and, when executed and delivered, will
conform in all material respects to the description thereof contained
in the Offering Document. The Registration Rights Agreement when
validly executed and delivered by the Trust and the Guarantor will
constitute a valid and legally binding obligation of the Trust and the
Guarantor and will be enforceable in accordance with its terms,
subject, as to enforcement, to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws
affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity
or at law).
(h) The Guarantee, the Convertible Junior Subordinated
Debentures, the Trust Agreement and the Indenture (the Guarantee, the
Convertible Junior Subordinated Debentures, the Trust Agreement and
the Indenture being collectively referred to as the "Guarantor
Agreements") have each been duly authorized and when validly executed
and delivered by the Guarantor and, in the case of the Guarantee, by
the Guarantee Trustee, in the case of the Trust Agreement, by the
Trustees and, in the case of the Indenture, by the Debenture Trustee,
and, in the case of the Convertible Junior Subordinated Debentures,
when validly issued by the Guarantor and validly authenticated and
delivered by the Debenture Trustee and paid for by the Trust, will
constitute valid and legally binding obligations of the Guarantor,
enforceable in accordance with their respective terms, subject, as to
enforcement, to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws affecting
creditors' rights generally and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law); the
Convertible Junior Subordinated Debentures are entitled to the
benefits of the Indenture; and the Guarantor Agreements will conform
in all material respects to the descriptions thereof in the Offering
Document.
6
(i) When the Preferred Securities are delivered and paid for
pursuant to this Agreement on the Closing Date, such Preferred
Securities will be exchangeable for Convertible Junior Subordinated
Debentures which will be convertible into the shares of Common Stock
("Underlying Shares") of the Guarantor in accordance with the Trust
Agreement; the Underlying Shares initially issuable upon conversion of
such Preferred Securities have been duly authorized and reserved for
issuance upon such conversion and, when issued upon such conversion,
will be validly issued, fully paid and nonassessable; the outstanding
shares of Common Stock of the Guarantor conform in all material
respects to the description thereof contained in the Offering
Document; and the stockholders of the Guarantor have no preemptive
rights with respect to the Preferred Securities, the Convertible
Junior Subordinated Debentures or the Underlying Shares.
(j) There are no contracts, agreements or understandings between
the Guarantor and any person that would give rise to a valid claim
against any for a brokerage commission, finder's fee or other like
payment in connection with the sale of the Preferred Securities.
(k) Assuming the accuracy of the representations and warranties
of the Purchasers set forth in Section 4 of this Agreement, no
consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement, the
Registration Rights Agreement and the Guarantor Agreements in
connection with the issuance and sale of the Preferred Securities by
the Trust, the exchange of the Convertible Junior Subordinated
Debentures for Preferred Securities or the purchase of the Convertible
Junior Subordinated Debentures by the Trust, except in connection with
the registration of the Securities pursuant to the Registration Rights
Agreement, and except as to state or foreign securities laws or by the
regulations of the National Association of Securities Dealers, Inc.
("NASD").
(l) The issue and sale of Preferred Securities, the exchange of
the Convertible Junior Subordinated Debentures for Preferred
Securities, the execution, delivery and performance of this Agreement,
and the Registration Rights Agreement, the compliance by the Trust and
the Guarantor with all of the provisions of this Agreement, the
purchase of the Convertible Junior
7
Subordinated Debentures by the Trust and the consummation of the
transactions contemplated herein will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Trust is a party or by
which the Trust is bound or to which any of the property or assets of
the Trust is subject, nor will such action result in any violation of
the provisions of the Trust Agreement or any statute or any material
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Trust or any of its properties, except
for such conflicts, breaches, defaults or violations that would not
have a material adverse effect on the assets, operations, condition
(financial and otherwise) or the prospects of the Trust taken as a
whole (a "Trust Material Adverse Effect").
(m) The issuance by the Guarantor of the Guarantee, the
compliance by the Guarantor with all of the provisions of this
Agreement, the issuance upon exchange and conversion of the Underlying
Shares, the execution, delivery and performance by the Guarantor of
the Registration Rights Agreement and the Guarantor Agreements and the
consummation of the transactions herein and therein contemplated will
not conflict with, result in the creation or imposition of any lien,
charge or encumbrance upon any assets of the Guarantor or any of its
subsidiaries pursuant to the terms of, or constitute a default under,
any material agreement, indenture or instrument, or result in a
violation of the corporate charter or by-laws of the Guarantor or any
of its subsidiaries or any material order, rule or regulation of any
court or governmental agency having jurisdiction over the Guarantor,
any of its subsidiaries or their respective properties, except for
such conflicts, liens, charges, encumbrances, defaults or violations
that would not have a Material Adverse Effect; and assuming the
accuracy of the representations and warranties of the Purchasers set
forth in Section 4 of this Agreement, no consent, authorization or
order of, or filing or registration with, any court or governmental
agency is required therefor, except in connection with the
registration of the Securities pursuant to the Registration Rights
Agreement and except as to state or foreign securities laws or by the
regulations of the NASD.
(n) Neither the Trust, the Guarantor nor any of the Guarantor's
subsidiaries is in violation of its
8
organizational documents or in default under any agreement, indenture,
mortgage, lease, note or instrument, which violation or default would
have a Material Adverse Effect or a Trust Material Adverse Effect.
(o) The Trust has full power and authority to authorize, issue
and sell the Preferred Securities as contemplated by this Agreement
and to execute, deliver and perform this Agreement and the
Registration Rights Agreement.
(p) This Agreement has been duly authorized, executed and
delivered by the Trust and the Guarantor.
(q) Except as disclosed in the Offering Document, the Trustee (as
defined in the Offering Document) will on the Closing Date have good
and valid title to all the Convertible Junior Subordinated Debentures,
free from liens, encumbrances and defects that would materially affect
the value thereof or materially interfere with the use made or to be
made thereof by the Trust.
(r) There is no material litigation or governmental proceeding
pending or, to the knowledge of the Guarantor, threatened against the
Guarantor or any of its subsidiaries which may reasonably be expected
to result in any Material Adverse Effect.
(s) The financial statements of the Guarantor and its
consolidated subsidiaries included or incorporated by reference in the
Offering Document present fairly, in all material respects, the
financial position of the Guarantor and its consolidated subsidiaries
as of the dates shown and their results of operations and cash flows
for the periods shown, and, except as otherwise disclosed in the
Offering Document, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis and the assumptions used
in preparing the pro forma financial statements included in or
incorporated by reference in the Offering Document provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the
related pro forma adjustments give appropriate effect to those
assumptions and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
9
(t) Since the dates as of which information is given in the
Offering Document, no Material Adverse Effect has occurred.
(u) Neither the Trust nor the Guarantor is an open-end investment
company, unit investment trust or face-amount certificate company that
is or is required to be registered under Section 8 of the Investment
Company Act of 1940 (together with the rules and regulations
thereunder, the "Investment Company Act"), nor is it a closed-end
investment company required to be registered, but not registered,
thereunder; and each of the Trust and the Guarantor is not and, after
giving effect to the offer and sale of the Preferred Securities and
the application of the proceeds thereof as described in the Offering
Document, will not be an "investment company" as defined in the
Investment Company Act.
(v) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Preferred Securities
are listed on any national securities exchange registered under
Section 6 of the Exchange Act or quoted in a U.S. automated
interdealer quotation system.
(w) The offer and sale of the Preferred Securities in the manner
contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof,
and Regulation S ("Regulation S") thereunder; and it is not necessary
to qualify an indenture in respect of any of the Securities under the
United States Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), except as contemplated by the Registration Rights
Agreement.
(x) Neither the Guarantor, nor the Trust, nor any of their
respective affiliates, nor any person acting on behalf of any of the
foregoing (i) has, within the six-month period prior to the date
hereof, offered or sold in the United States or to any U.S. person (as
such terms are defined in Regulation S under the Securities Act) the
Preferred Securities or any security of the same class or series as
the Preferred Securities or (ii) has offered or will offer or sell the
Preferred Securities (A) in the United States by means of any form of
general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act or (B) with respect to any such
securities sold in reliance on Rule 903 of Regulation S
10
under the Securities Act, by means of any directed selling efforts
within the meaning of Rule 902(b) of Regulation S. The Guarantor and
the Trust, their respective affiliates and any person acting on behalf
of any of the foregoing have complied and will comply with the
offering restrictions requirement of Regulation S. The Guarantor and
the Trust have not entered and will not enter into any contractual
arrangement with respect to the distribution of the Preferred
Securities except for the Placement Agreement, dated June 12, 1997
between the Guarantor and Credit Suisse First Boston Corporation, this
Agreement and the Registration Rights Agreement.
(y) The Guarantor is subject to Section 13 or 15(d) of the
Exchange Act.
(z) The Guarantor and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them, except where the failure to possess such
certificates or permits will not individually or in the aggregate have
a Material Adverse Effect; and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the
Guarantor or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(aa) Except as disclosed in the Offering Document and except for
statutory liens for sums not yet due or which are being contested in
good faith in appropriate proceedings, the Guarantor and its
subsidiaries have good and marketable title to all real properties and
other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would, individually or in the
aggregate, have a Material Adverse Effect; and except as disclosed in
the Offering Document or as will not have a Material Adverse Effect,
the Guarantor and its subsidiaries hold any leased real or personal
property under valid and enforceable leases with no exceptions that
would materially interfere with the use made or to be made thereof by
them.
(bb) The Guarantor and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct
11
the business now operated by them, or presently employed by them, the
loss of which may reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Guarantor or any of its subsidiaries,
would individually or in the aggregate, have a Material Adverse
Effect.
(cc) No labor dispute with the employees of the Guarantor or any
of its subsidiaries exists or, to the knowledge of the Guarantor, is
imminent that may be reasonably expected to have a Material Adverse
Effect.
(dd) Except as disclosed in the Offering Document, neither the
Guarantor nor any of its subsidiaries is in violation of any statute,
any rule, regulation, decision or order of any governmental agency or
body or any court, domestic or foreign, relating to the use, disposal
or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"),
owns or operates any real property contaminated with any substance
requiring remediation or removal under any environmental laws, is
liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
individually or in the aggregate may reasonably be expected to have a
Material Adverse Effect; and the Guarantor is not aware of any pending
investigation which might lead to such a claim.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Trust and the Guarantor agree that
the Trust shall issue and sell to the Purchasers, and the Purchasers agree to
purchase from the Trust, at a purchase price of $50 per Preferred Security, plus
accrued and unpaid distributions if any, from the closing date, the number of
Preferred Securities set forth opposite the name of each Purchaser in Schedule A
hereto.
The Trust will deliver against payment of the purchase price the Preferred
Securities in the form of one or more permanent global Securities in definitive
form (the
12
"Global Securities") deposited with the Trustee as custodian for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. The Global Securities shall include the legend regarding
restrictions on transfer set forth under "Transfer Restrictions" in the Offering
Document. Interests in any permanent global Preferred Securities will be held
only in book-entry form through DTC, except in the limited circumstances
described in the Offering Document. Payment for the Global Securities shall be
made by the Purchasers in Federal (same day) funds to the account specified in
Schedule A to this Agreement by wire transfer payable to the order of the Trust
at the office of Cravath, Swaine & Xxxxx at 10:00 a.m. (New York time), on June
12, 1997 or at such other time not later than seven full business days
thereafter as the Purchasers and the Trust and the Guarantor determine such time
being herein referred to as the "Closing Date", against delivery to the Trustee
as custodian for DTC of the Global Securities representing all of the Global
Securities.
4. Representations by Purchasers; Resale by Purchaser. Each of undersigned
Purchasers hereby severally acknowledges, represents, warrants to and agrees
with the Trust and the Guarantor as follows:
(a) None of the Preferred Securities are registered under the
Securities Act of 1933, as amended (the "Securities Act") or any state
securities laws. Each of the undersigned understands that the offering
and sale of the Preferred Securities is intended to be exempt from
registration under the Securities Act by virtue of Section 4(2)
thereof, based, in part, upon the representations, warranties and
agreements contained in this Agreement;
(b) Each of the undersigned has received the Offering Document,
has carefully reviewed it and understands the information contained
therein;
(c) Neither the Securities and Exchange Commission nor any state
securities commission has approved the Preferred Securities or passed
upon or endorsed the merits of the offering or confirmed the accuracy
or determined the adequacy of the Offering Document. The Offering
Document has not been reviewed by any Federal, state or other
regulatory authority;
(d) Each of the undersigned acknowledges that all documents,
records and books pertaining to the investment in the Preferred
Securities (including, without limitation, the Offering Document)
which it has
13
requested have been made available for inspection by it, its
attorneys, accountants, purchaser representatives or tax advisors
(collectively, the "Advisors");
(e) Each of the undersigned and its Advisors have had a
reasonable opportunity to ask questions of and receive answers from a
person or persons acting on behalf of the Trust and the Guarantor
concerning the offering of the Preferred Securities and all such
questions have been answered to the full satisfaction of each of the
undersigned and its Advisors;
(f) In evaluating the suitability of an investment in the Trust,
each of the undersigned has not relied upon any representation or
other information (oral or written) other than as stated in the
Offering Document or as contained in documents or answers to questions
so furnished to each of the undersigned or its Advisors by the Trust
or the Guarantor;
(g) Each of the undersigned is unaware of, and in no way relying
on, any form of general solicitation or general advertising in
connection with the offer and sale of the Preferred Securities;
(h) Each of the undersigned has such knowledge and experience in
financial, tax, and business matters so as to enable it to utilize the
information made available to it in connection with the offering of
the Preferred Securities to evaluate the merits and risks of an
investment in the Preferred Securities and to make an informed
investment decision with respect thereto;
(i) Each of the undersigned is not relying on the Trust or the
Guarantor respecting the tax and other economic considerations of an
investment in the Preferred Securities, and each of the undersigned
has relied on the advice of, or has consulted with, only its own
Advisors;
(j) Each of the undersigned is acquiring the Preferred Securities
solely for its own account for investment and not with a view to
resale or distribution;
(k) Each of the undersigned must bear the economic risk of the
investment indefinitely because none of the Preferred Securities may
be sold hypothecated or otherwise disposed of unless or until
14
subsequently registered under the Securities Act and applicable
state securities laws or an exemption from registration is available
with respect thereto. Legends shall be placed on the Preferred
Securities to the effect that they have not been registered under the
Securities Act or applicable state securities laws and appropriate
notations thereof will be made in the Trusts's Preferred Securities
register;
(l) Each of the undersigned is aware that an investment in the
Preferred Securities involves a number of very significant risks and
has carefully read and considered the matters set forth under the
caption "Risk Factors" in the Offering Document;
(m) Each of the undersigned: (i) if a corporation, partnership,
association, joint stock company, trust, unincorporated organization
or other entity represents that such entity was not formed for the
specific purpose of acquiring the Preferred Securities, such entity is
validly existing under the laws of the state of its organization, the
consummation of the transactions contemplated hereby is authorized by,
and will not result in a violation of state law or its charter or
other organizational documents, such entity has full power and
authority to execute and deliver this Agreement and all other related
agreements or certificates and to carry out the provisions hereof and
thereof, this Agreement has been duly authorized by all necessary
action, this Agreement has been duly executed and delivered on behalf
of such entity and is a legal, valid and binding obligation of such
entity; (ii) if executing this Agreement in a representative or
fiduciary capacity, represents that it has full power and authority to
execute and deliver this Agreement in such capacity and on behalf of
the subscribing individual, xxxx, partnership, trust, estate,
corporation, or other entity for whom the undersigned is executing
this Agreement, and such individual, xxxx, partnership, trust, estate,
corporation, or other entity has full right and power to perform
pursuant to this Agreement and make an investment in the Trust, and
that this Agreement constitutes a legal, valid and binding obligation
of such entity.
15
5. Certain Agreements of the Trust and the Guarantor. Each of the
Trust and the Guarantor, jointly and severally, agrees with the
Purchasers that:
(a) At any time when the Guarantor is not subject to Section 13
or 15(d) of the Exchange Act, the Guarantor will promptly furnish or
cause to be furnished to the Purchasers and, upon request of holders
and prospective purchasers of the Preferred Securities, to such
holders and purchasers, a reasonable number of copies of the
information required to be delivered to holders and prospective
purchasers of the Preferred Securities pursuant to Rule 144A (d)(4)
under the Securities Act (or any successor provision thereto) in order
to permit compliance with Rule 144A in connection with resales by such
holders of the Preferred Securities.
(b) During the period of five years hereafter, the Guarantor will
furnish to each Purchaser, as soon as practicable after the end of
each fiscal year, a copy of its annual report to stockholders for such
year; and the Guarantor will furnish to each Purchaser (i) as soon as
available, a copy of each report and any definitive proxy statement of
the Guarantor filed with the Commission under the Exchange Act or
mailed to stockholders and (ii) from time to time, such other
information concerning the Guarantor as each Purchaser may reasonably
request.
(c) During the period of two years after the Closing Date (or,
after the Shelf Registration Statement shall have been declared
effective, such shorter period as may be specified in Section 2(b) of
the Registration Rights Agreement), the Guarantor will, upon request,
furnish to each Purchaser a copy of the restrictions on transfer set
forth under "Transfer Restrictions" in the Offering Document
applicable to the Preferred Securities.
(d) During the period of two years after the Closing Date (or,
after the Shelf Registration Statement shall have been declared
effective, such shorter period as may be specified in Section 2(b) of
the Registration Rights Agreement), the Guarantor will not, and will
not permit any of its affiliates (as defined in Rule 144 under the
Securities Act) to, resell any of the Preferred Securities that have
been reacquired by any of them, except for Preferred Securities
purchased by the Guarantor or any of its
16
affiliates and resold in a transaction registered under the Securities
Act.
(e) During the period of two years after the Closing Date (or,
after the Shelf Registration Statement shall have been declared
effective, such shorter period as may be specified in Section 2(b) of
the Registration Rights Agreement), the Guarantor and the Trust will
not be or become an open-end investment company, unit investment trust
or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act and is not,
and will not be or become, a closed-end investment company required to
be registered, but not registered, under the Investment Company Act.
(f) The Guarantor will pay all expenses incidental to the
performance of its obligations under this Agreement, the Registration
Rights Agreement and the Guarantor Agreements, including but not
limited to (i) the fees and expenses of the Trustees and their
professional advisers; (ii) all expenses in connection with the
execution, issue, authentication, packaging and initial delivery of
the Preferred Securities, the preparation and printing of this
Agreement, the Registration Rights Agreement, the Preferred Securities
and the Guarantor Agreements, the Offering Document and amendments and
supplements thereto, and any other document relating to the issuance,
offer, sale and delivery of the Preferred Securities; (iii) the fees
and disbursements of Xxxxxxx Xxxx & Xxxxxxxxx, who are acting as
special counsel for the Purchasers in connection with the transactions
contemplated by this Agreement; and (iv) qualifying the Offered
Securities for trading in The Private Offerings, Resale and Trading
through Automated Linkages (PORTAL)Market of the Nasdaq Stock Market
Inc. and any expenses incidental thereto.
(g) The Trust and the Guarantor will apply the proceeds of the
offer and sale of the Preferred Securities in the manner set forth in
the Offering Document under the caption "Use of Proceeds".
(h) So long as a Purchaser or any of its affiliates is the holder
of a Preferred Security, or a Book Entry Interest (as defined in the
Trust Agreement), the Guarantor will deliver or cause the Debenture
Trustee or the Trust, as appropriate, to deliver to such Purchaser or
affiliate:
17
(i) concurrently with the giving of notice thereof to the
Trustee or the holder or holders of the Convertible Junior
Subordinated Debentures, written notice of the selection of an
Extended Interest Payment Period and each extension thereof, in each
case pursuant to Section 3.12 of the Indenture,
(ii) concurrently with the delivery thereof to the holder or
holders of the Convertible Junior Subordinated Debentures pursuant to
Section 6.02 of the Indenture, a copy of each notice of a default or
Event of Default under the Indenture,
(iii) promptly after filing thereof with the Trustee, copies
of all information, documents and other reports filed pursuant to
Section 7.04 of the Indenture,
(iv) concurrently with the mailing of notice thereof to the
record holders of Preferred Securities pursuant to Section 13.05 of
the Indenture, a copy of each certificate filed with the Debenture
Trustee in connection with an adjustment of the conversion price of
the Underlying Shares, and
(v) concurrently with the delivery thereof to the
Depositary, copies of all notices or other writings under the
Indenture or the Trust Agreement that are required to be provided to
record holders of Preferred Securities.
6. Conditions of the Obligations of the Purchasers. The obligations of each
Purchaser to purchase and pay for the Preferred Securities on the Closing Date
will be subject to the accuracy of the representations and warranties on the
part of the Trust and the Guarantor herein, to the accuracy of the statements of
officers of the Trust and the Guarantor made pursuant to the provisions hereof,
to the performance by the Trust and the Guarantor of their obligations hereunder
and to the following additional conditions precedent:
(a) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in or affecting particularly the condition
(financial or other), business, properties or results of operations of the
Trust or the Guarantor and its subsidiaries which, in the reasonable
judgment of a
Purchaser, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating of
any debt securities of the Guarantor by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Securities Act) or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Guarantor (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading
in securities generally on either of the New York Stock Exchange or The
Nasdaq Stock Market's National Market, or any setting of minimum prices for
trading on any such exchange, or any suspension of trading of any
securities of the Guarantor on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by U.S. Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if,
in the reasonable judgment of a Purchaser, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the offering or sale of and
payment for the Offered Securities.
(b) The Purchasers shall have received opinions, dated such Closing
Date of (i) Xxxxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Trust
and the Guarantor in the forms attached hereto as Exhibits A-1 and A-2;
(ii) Morris, Nichols, Arsht & Xxxxxxx, special Delaware counsel to the
Trust and the Guarantor, substantially in the form attached hereto as
Exhibit B; (iii) Xxxxx, Xxxxxx & Xxxxxx, counsel to the Guarantee Trustee,
Indenture Trustee and Property Trustee, in the form attached hereto as
Exhibit C and (iv) Morris, Nichols, Arsht & Xxxxxxx, counsel for the
Delaware Trustee, in the form attached hereto as Exhibit D.
(c) The Purchasers shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Guarantor in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Trust and the
Guarantor in this Agreement are true and correct, that the Trust and the
Guarantor have complied with all agreements and satisfied all conditions on
their part to be performed or satisfied hereunder at or prior to such
Closing Date and that, subsequent to the dates of the most recent financial
statements in the Offering Document there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business, properties
or results of operations of the Guarantor and its subsidiaries taken as a
whole except as set forth in or contemplated by the Offering Document or as
described in such certificate.
(d) The Registration Rights Agreement shall have been duly executed
and delivered by the Guarantor and the Trust.
(e) The Preferred Securities and the Convertible Junior Subordinated
Debentures shall have been assigned Private Placement Numbers by Standard &
Poor's CUSIP Service Bureau (in cooperation with the Securities Valuation
Office of the National Association of Securities Commissioners).
(f) The Guarantor shall have paid the fees and disbursements of
special counsel for the Purchasers referred to in Section 5(f) to the
extent reflected in a statement of such counsel rendered to the Guarantor
at least one business day before the Closing Date.
The Guarantor will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Purchasers reasonably
request. The Purchasers may in their sole discretion waive compliance with any
conditions to the obligations of the Purchasers hereunder.
7. Survival of Certain Representations and Obligations. The respective
agreements, representations, warranties and other statements of the Trust and
the Guarantor or their officers and of the Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of the Purchasers, the Trust or the Guarantor or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Preferred Securities. If for any reason
the purchase of the Preferred Securities by the Purchasers are not consummated,
the Trust and the Guarantor shall remain
20
responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and if any Preferred Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect.
8. Notices. All communications hereunder will be in writing and, if sent to
the Purchasers will be mailed, delivered or telegraphed and confirmed to each
Purchaser at the addresses listed in Schedule A hereto, or, if sent to the Trust
or the Guarantor, will be mailed, delivered or telegraphed and confirmed to it
at DT Industries, Inc., 0000 X. Xxxxxxxx, Xxxxxxxxxxx, XX 00000, Attention:
President and Chief Executive Officer.
9. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns, and no
other person will have any right or obligation hereunder, except that the
holders, from time to time, of the Preferred Securities, shall be entitled to
enforce the agreements for their benefit contained in Section 5(a) hereof
against the Trust or the Guarantor as if such holders were parties hereto.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
11. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of laws.
Each of the Trust and the Guarantor hereby submits to the nonexclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
21
If the foregoing is in accordance with the Purchasers' understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Trust and the Guarantor
and the Purchasers in accordance with its terms.
Very truly yours,
DT CAPITAL TRUST,
by Xxxxxxx X. Xxxx, solely in
his capacity as trustee
and not in his individual
capacity,
/s/ Xxxxxxx X. Xxxx
-----------------------------------
by Xxxxxxx X. Xxxxxx, solely in
his capacity as trustee
and not in his individual
capacity,
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
DT INDUSTRIES, INC.,
by /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
22
The foregoing Purchase
Agreement is hereby confirmed
and accepted as of the date
first above written.
The Northwestern Mutual Life
Insurance Company,
by /s/ A. Xxxx Xxxxxxx
-----------------------------
Name: A. Xxxx Xxxxxxx
Title: Vice President
The Travelers
Insurance Company
(I/N/O TRAL & Co.)
by /s/ Xxxx X. Xxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Second Vice President
The Travelers Indemnity Company
(I/N/O TRAL & Co.)
by /s/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Second Vice President
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
The foregoing is executed on behalf of the Trust, organized under a Declaration
of Trust, dated April 7, 1988, as amended from time to time. The obligations of
such Trust are not personally binding upon, nor shall resort be had to the
property of, any of the Trustees, shareholders, officers, employees or agents of
such Trust, but the Trust's property only shall be bound.
MASSMUTUAL PARTICIPATION INVESTORS
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
The foregoing is executed on behalf of the Trust, organized under a Declaration
of Trust, dated September 13, 1985, as amended from time to time. The
obligations of such Trust are not personally binding upon, nor shall resort be
had to the property of, any of the Trustees, shareholders, officers, employees
or agents of such Trust, but the Trust's property only shall be bound.
MASSMUTUAL CORPORATE INVESTORS
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
24
MASSMUTUAL CORPORATE VALUE PARTNERS LIMITED,
By Massachusetts Mutual Life Insurance Company, its
Investment Manager
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
MASSMUTUAL HIGH YIELD PARTNERS LLC,
By HYP Management, Inc. as Managing Member
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
NOTE
The following page contains a list of Exhibits and Schedules which have
been intentionally omitted by the Registrant.
A copy of any omitted Exhibit or Schedule will be provided to the
Securities and Exchange Commission upon request.
SCHEDULE A List of names and addresses of Purchasers, dollar amounts of
amounts of securities to be purchased and funding instructions
