Exhibit 2c
_____________________________________________________________
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
11,764,000 Shares
Common Stock
U.S. PURCHASE AGREEMENT
MERRILL LYNCH & CO.
WHEAT FIRST BUTCHER & SINGER
THE CHICAGO DEARBORN COMPANY
RAUSCHER PIERCE REFSNES, INC.
_____________________________________________________________
11,764,000 Shares
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
(a Delaware corporation)
Common Stock
(Par Value $1.00 Per Share)
U.S. PURCHASE AGREEMENT
January 26, 1994
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
WHEAT FIRST BUTCHER & SINGER
Wheat, First Securities, Inc.
THE CHICAGO DEARBORN COMPANY
RAUSCHER PIERCE REFSNES, INC.
as U.S. Representatives of the
several U.S. Underwriters
c/o MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
250 Vesey Street
New York, New York 10281
Dear Sirs:
O'Sullivan Industries Holdings, Inc., a Delaware
corporation (the "Company"), and TE Electronics Inc., a
Delaware corporation (the "Selling Stockholder"), confirm
their agreement with you and each of the other underwriters
named in Schedule A hereto (collectively, the "U.S.
Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof),
for whom Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"), Wheat, First Securities, Inc., The Chicago
Dearborn Company and Rauscher Pierce Refsnes, Inc. are acting
as U.S. representatives (in such capacity, Merrill Lynch,
Wheat, First Securities, Inc., The Chicago Dearborn Company
and Rauscher Pierce Refsnes, Inc. being hereinafter
collectively referred to as the "U.S. Representatives"), with
respect to (i) the sale by the Selling Stockholder and the
purchase by the U.S. Underwriters, acting severally and not
jointly, of the respective number of shares of Common Stock,
par value $1.00 per share ("Common Stock"), of the Company
set forth in Schedule A hereto, together with the Preferred
Stock Purchase Rights of the Company (the "Rights")
associated with such shares, and (ii) the grant by the
Company to the U.S. Underwriters, acting severally and not
jointly, of the option described in Section 2(b) hereof to
purchase all or any part of the U.S. Underwriters' pro rata
portion of up to an additional 1,800,000 shares of Common
Stock, together with the Rights associated with such shares,
to cover over-allotments, in each case except as may
otherwise be provided in the U.S. Pricing Agreement (as
hereinafter defined). The 11,764,000 shares of Common Stock,
together with the Rights associated with such shares, to be
purchased by the U.S. Underwriters from the Selling
Stockholder (the "Initial U.S. Securities") and all or any
part of the U.S. Underwriters' pro rata portion of the
1,800,000 shares of Common Stock, together with the Rights
associated with such shares, subject to the option described
in Section 2(b) hereof (the "U.S. Option Securities") are
hereinafter collectively referred to as the "U.S.
Securities."
It is understood that the Company and the Selling
Stockholder are concurrently entering into an International
Purchase Agreement of even date herewith (the "International
Purchase Agreement") with respect to (i) the sale by the
Selling Stockholder of 3,000,000 shares of Common Stock,
together with the Rights associated with such shares (the
"Initial International Securities"), through arrangements
with certain managing underwriters outside the United States
and Canada (the "Managers"), for whom Merrill Lynch
International Limited and UBS Limited are acting as lead
managers (the "Lead Managers"), and (ii) the grant by the
Company to the Managers of an option to purchase all or any
part of the Managers' pro rata portion of up to an additional
1,800,000 shares of Common Stock, together with the Rights
associated with such shares (the "International Option
Securities"), to cover over-allotments, in each case except
as may otherwise be provided in the International Pricing
Agreement (as hereinafter defined). The Initial
International Securities and the International Option
Securities are hereinafter collectively referred to as the
"International Securities." It is understood that the U.S.
Underwriters are not obligated to purchase any Initial U.S.
Securities unless all of the Initial International Securities
are contemporaneously purchased by the Managers.
The U.S. Underwriters and the Managers are
hereinafter collectively referred to as the "Underwriters."
The Initial U.S. Securities and the Initial International
Securities are hereinafter collectively referred to as the
"Initial Securities." The U.S. Option Securities and the
International Option Securities are hereinafter collectively
referred to as the "Option Securities." The U.S. Securities
and the International Securities are hereinafter collectively
referred to as the "Securities." Unless the context
otherwise requires, all references contained herein to the
Initial U.S. Securities, the U.S. Option Securities, the U.S.
Securities, the Initial International Securities, the
International Option Securities, the International
Securities, the Initial Securities, the Option Securities and
the Securities shall include the respective numbers of shares
of Common Stock set forth above, together with the Rights
associated with such shares.
The Company and the Selling Stockholder understand
that the Underwriters are concurrently entering into an
Intersyndicate Agreement of even date herewith providing for
the coordination of certain transactions among the
Underwriters under the direction of the U.S. Representatives
and Lead Managers.
Prior to the purchase and public offering of the
U.S. Securities by the several U.S. Underwriters, the
Company, the Selling Stockholder and the U.S.
Representatives, acting on behalf of the several U.S.
Underwriters, shall enter into an agreement substantially in
the form of Exhibit A hereto (the "U.S. Pricing Agreement").
The U.S. Pricing Agreement may take the form of an exchange
of any standard form of written telecommunication among the
Company, the Selling Stockholder and the U.S. Representatives
and shall specify such applicable information as is indicated
in Exhibit A hereto. The offering of the U.S. Securities will
be governed by this Agreement, as supplemented by the U.S.
Pricing Agreement. From and after the date of the execution
and delivery of the U.S. Pricing Agreement, this Agreement
shall be deemed to incorporate, and all references to "this
Agreement" or "herein" shall be deemed to include, the U.S.
Pricing Agreement, unless the context requires otherwise.
The initial public offering price and the purchase price with
respect to the International Securities shall be set forth in
a separate instrument (the "International Pricing
Agreement"), the form of which is attached to the
International Purchase Agreement. The price per share for
the International Securities to be purchased by the Managers
pursuant to the International Purchase Agreement shall be
identical to the price per share for the U.S. Securities to
be purchased by the U.S. Underwriters hereunder.
The Company has filed with the United States
Securities and Exchange Commission (the "Commission") a
registration statement on Form S-1 (Commission File No.
33-72120) to effect the registration of the Securities under
the Securities Act of 1933, as amended (the "1933 Act"), has
filed such amendments thereto, if any, as may have been
required to the date hereof, and will file such additional
amendments thereto as may hereafter be required. Such
registration statement includes two forms of prospectus for
use in connection with the offering and sale of the
Securities: the U.S. prospectus, for use in connection with
the offering and sale of Securities in the United States and
Canada to United States and Canadian persons and the
international prospectus, for use in connection with the
offering and sale of Securities outside the United States and
Canada to persons other than United States and Canadian
persons. The U.S. prospectus and international prospectus
are identical except that they contain different outside
front and outside back cover pages and different sections
under the caption "Underwriting" and the international
prospectus contains an additional section under the caption
"Certain United States Tax Consequences to Non-United States
Holders." Such registration statement also includes a third
form of prospectus relating to a separate offering of 236,000
shares of Common Stock, together with the Rights associated
with such shares, to certain members of the Company's
management and their affiliates. Such registration statement
(as amended, if applicable) and the prospectuses constituting
a part thereof at the time such registration statement
becomes effective (including, in each case, the information,
if any, deemed to be part thereof pursuant to Rule 430A(b) of
the rules and regulations of the Commission under the 1933
Act (the "1933 Act Regulations")), as from time to time
amended or supplemented pursuant to the 1933 Act or
otherwise, is hereinafter referred to as the "Registration
Statement." The U.S. prospectus and the international
prospectus in the respective forms included in the
Registration Statement are hereinafter referred to as the
"U.S. Prospectus" and the "International Prospectus," except
that if any revised prospectuses shall be provided to the
U.S. Underwriters or the Managers by the Company for use in
connection with the offering of the Securities which differ
from the prospectuses on file at the Commission at the time
the Registration Statement becomes effective (whether or not
such revised prospectuses are required to be filed by the
Company pursuant to Rule 424(b) of the 1933 Act Regulations),
the terms "U.S. Prospectus" and "International Prospectus"
shall refer to such revised prospectuses from and after the
time they are first provided to the U.S. Underwriters or the
Managers for such use. The U.S. Prospectus and the
International Prospectus are hereinafter referred to
collectively as the "Prospectuses" and, each individually, as
a "Prospectus." The prospectus relating to the separate
offering of 236,000 shares of Common Stock and associated
Rights to certain members of the Company's management and
their affiliates in the form included in the Registration
Statement is hereinafter referred to as the "Management
Prospectus."
The Company and the Selling Stockholder understand
that the U.S. Underwriters propose to make a public offering
of the U.S. Securities as soon as the U.S. Representatives
deem advisable after the Registration Statement becomes
effective and the U.S. Pricing Agreement has been executed
and delivered.
SECTION 1. Representations and Warranties.
(a) The Company and the Selling Stockholder
jointly and severally represent and warrant to each
of the U.S. Underwriters (except that the Selling
Stockholder does not make any representation or
warranty with respect to the matters addressed by
clauses (xii), (xvi), (xvii), (xviii) and (xxi)
below) as of the date hereof and as of the date of
the U.S. Pricing Agreement (such latter date being
hereinafter referred to as the "U.S. Representation
Date") as follows:
(i) At the time the Registration Statement
becomes effective and at the U.S. Representation
Date, the Registration Statement will comply in all
material respects with the requirements of the 1933
Act and the 1933 Act Regulations and will not
contain an untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements therein
not misleading. The Prospectuses, at the U.S.
Representation Date (unless the term "Prospectuses"
refers to prospectuses which have been provided to
the U.S. Underwriters and the Managers by the
Company for use in connection with the offering of
the Securities which differ from the prospectuses
on file at the Commission at the time the
Registration Statement becomes effective, in which
case at the time such prospectuses are first
provided to the U.S. Underwriters and the Managers
for such use) and at Closing Time (as hereinafter
defined) will not include an untrue statement of a
material fact or omit to state a material fact
necessary in order to make the statements therein,
in the light of the circumstances under which they
were made, not misleading; provided, however, that
the representations and warranties in this
subsection shall not apply to statements in or
omissions from the Registration Statement or
Prospectuses made in reliance upon and in
conformity with information furnished to the
Company in writing by any Underwriter through
Merrill Lynch expressly for use in the Registration
Statement or the Prospectuses.
(ii) Price Waterhouse, the accountants who
reported on the combined financial statements
included in the Registration Statement and the
Prospectuses are independent public accountants
with respect to the Company and its Subsidiaries
(as hereinafter defined) as required by the 1933
Act and the 1933 Act Regulations.
(iii) The combined financial statements,
including the notes thereto, included in the
Registration Statement and the Prospectuses present
fairly the combined financial position of the
Company and its Subsidiaries as at the dates
indicated and the combined results of operations
and cash flows for the Company and its Subsidiaries
for the periods specified; such financial
statements have been prepared in conformity
with generally accepted accounting principles
applied on a consistent basis throughout the
periods involved; there are no supporting schedules
required to be included in the Registration
Statement pursuant to the 1933 Act or the 1933 Act
Regulations (other than schedules which have been
ommitted therefrom because the required information
is included in the combined financial statements,
including the notes thereto, included in the
Registration Statement and the Prospectuses).
(iv) The pro forma financial information
included in the Registration Statement and the
Prospectuses has been prepared in all material
respects in accordance with the applicable rules
and regulations of the Commission with respect to
pro forma financial statements, presents fairly the
information included therein and has been properly
compiled on the pro forma basis described therein;
in the opinion of the Company and the Selling
Stockholder, the assumptions used in the
preparation of such pro forma financial information
are reasonable and the adjustments made thereto are
appropriate to give effect to the transactions and
events referred to therein.
(v) Since the respective dates as of which
information is given in the Registration Statement
and the Prospectuses, except as otherwise stated
therein or expressly contemplated thereby, (A)
there has been no material adverse change in the
condition, financial or otherwise, or the earnings,
business affairs or business prospects of the
Company and its Subsidiaries considered as one
enterprise, whether or not arising in the ordinary
course of business, (B) there have been no
transactions entered into by the Company or any of
its Subsidiaries, other than the reorganization
transactions to be consummated prior to or at
Closing Time as described in the Prospectuses under
the caption "Certain Transactions --Reorganization
Transactions" and other transactions entered into
in the ordinary course of business, which are
material with respect to the Company and its
Subsidiaries considered as one enterprise and
(C) except for (1) the dividend in the amount of
$40 million to be paid to the Selling Stockholder
by Old O'Sullivan (as hereinafter defined) prior to
Closing Time as described in the Prospectuses under
the caption "Certain Transactions -- Reorganization
Transactions, (2) the final adjusting payment, if
any, to be made by the Company to Tandy as a result
of the accounting of the stockholders' equity of
the Company at Closing Time described in the
Prospectuses under the caption "Certain
Transactions -- The Reorganization" and (3) the
dividend of one Right to be issued with respect to
each share of Common Stock as described in the
Prospectuses under the caption "Description of
Capital Stock -- Stockholder Rights Plan," there
has been no dividend or distribution of any kind
declared, paid or made by the Company or any of its
Subsidiaries on any class of their capital stock.
(vi) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Delaware
and has all necessary corporate power to own, lease
and operate its properties and to conduct its
business as described in the Prospectuses, and the
Company is duly qualified as a foreign corporation
to transact business and is in good standing in
each jurisdiction in which such qualification is
required, whether by reason of the ownership or
leasing of property or the conduct of business,
except where the failure to have such corporate
power or to be so qualified would not have a
material adverse effect on the condition, financial
or otherwise, or on the earnings, business affairs
or business prospects of the Company and its
Subsidiaries considered as one enterprise.
(vii) Each Subsidiary of the Company has been
duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation and has all
necessary corporate power to own, lease and operate
its properties and to conduct its business as
described in the Prospectuses, and each Subsidiary
of the Company is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which such
qualification is required, whether by reason of the
ownership or leasing of property or the conduct of
business, except where the failure to have such
corporate power or to be so qualified would not
have a material adverse effect on the condition,
financial or otherwise, or on the earnings,
business affairs or business prospects of the
Company and its Subsidiaries considered as one
enterprise; all of the issued and outstanding
capital stock of each such Subsidiary has been duly
authorized and, at Closing Time, will be validly
issued, fully paid and nonassessable and will be
owned by the Company, directly or indirectly, free
and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, except
any such security interest, mortgage, pledge, lien,
encumbrance, claim or equity that is disclosed in
the Prospectuses.
(viii) At Closing Time, the authorized,
issued and outstanding capital stock of the Company
will be as set forth in the Prospectuses under the
column entitled "As Adjusted" under the caption
"Capitalization;" the 100 shares of Common Stock
heretofore issued by the Company to the Selling
Stockholder have been duly authorized and are
validly issued, fully paid and nonassessable; the
14,999,900 shares of Common Stock to be issued by
the Company to the Selling Stockholder in
accordance with the Stock Exchange Agreement (as
hereinafter defined) have been duly authorized and,
when issued and delivered by the Company in
accordance with said agreement, will be validly
issued, fully paid and nonassessable; the Option
Securities have been duly authorized for issuance
and sale to the Underwriters pursuant to this
Agreement and the International Purchase Agreement
and, when issued and delivered by the Company in
accordance with this Agreement and the
International Purchase Agreement against payment of
the consideration set forth herein and therein,
will be validly issued, fully paid and
nonassessable; the issuance of the Securities is
not subject to any preemptive or other similar
rights to subscribe for or purchase the same
arising by operation of law, under the charter or
bylaws of the Company or otherwise; the Common
Stock conforms in all material respects to all
statements relating thereto contained in the
Prospectuses; at Closing Time, the Rights
associated with the shares of Common Stock to be
sold or issued pursuant to this Agreement and the
International Purchase Agreement will have been
duly and validly authorized and, when the shares of
Common Stock with which they are associated are
sold or issued and delivered in accordance with
this Agreement and the International Purchase
Agreement, will be validly issued in accordance
with the terms of the Rights Agreement, dated as of
February 1, 1994, between the Company and The First
National Bank of Boston, as Rights Agent, as
amended; the Rights conform in all material
respects to the statements relating thereto
contained in the Prospectuses.
(ix) This Agreement has been duly authorized,
executed and delivered by the Company and, at the
U.S. Representation Date, the U.S. Pricing
Agreement will be duly authorized, executed and
delivered by the Company.
(x) Neither the Company nor any of its
Subsidiaries is in violation of its charter or
bylaws or is in default in the performance or
observance of any obligation, agreement, covenant
or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its
Subsidiaries is a party or by which any of them is
bound or to which any of the property or assets of
any of them is subject, except as disclosed in the
Prospectuses and except for any such violations or
defaults which would not have a material adverse
effect on the condition, financial or otherwise, or
on the earnings, business affairs or business
prospects of the Company and its Subsidiaries
considered as one enterprise; the execution,
delivery and performance by the Company of this
Agreement, the International Purchase Agreement,
the U.S. Pricing Agreement and the International
Pricing Agreement and the consummation by the
Company of the transactions contemplated herein and
therein will not conflict with or constitute a
breach or violation of, or default under, or result
in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the
Company or any of its Subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a
party or by which any of them is bound or to which
any of the property or assets of any of them is
subject, nor will such action result in any breach
or violation of, or default under, the provisions
of the charter or bylaws of the Company or any of
its Subsidiaries or of any existing applicable law,
administrative regulation or administrative or
court decree, except for such conflicts, breaches,
violations, defaults, liens, charges or
encumbrances that would not affect in any material
respect the transactions contemplated by this
Agreement or the International Purchase Agreement
and would not have a material adverse effect on the
condition, financial or otherwise, or on the
earnings, business affairs or business prospects of
the Company and its Subsidiaries considered as one
enterprise.
(xi) No authorization, approval or consent
of, or registration or filing with, any court or
governmental authority or agency is required for
the execution, delivery or performance by the
Company of this Agreement, the International
Purchase Agreement, the U.S. Pricing Agreement or
the International Pricing Agreement or the
consummation by the Company of the transactions
contemplated herein and therein, except such as may
be required under the 1933 Act, the 1933 Act
Regulations, the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and the rules and
regulations of the Commission under the 1934 Act
(the "1934 Act Regulations") or under the
securities laws of any state or other jurisdiction.
(xii) No labor dispute with the employees of
the Company or any of its subsidiaries exists or,
to the knowledge of the Company, is imminent, which
could reasonably be expected to result in any
material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs
or business prospects of the Company and its
Subsidiaries considered as one enterprise.
(xiii) There is no action, suit or proceeding
before or by any court or governmental agency or
body, domestic or foreign, now pending or, to the
knowledge of the Company or the Selling
Stockholder, threatened against or affecting the
Company or any of its Subsidiaries, except as
disclosed in the Prospectuses, which (A) is
required to be disclosed in the Registration
Statement and the Prospectuses, (B) might
reasonably be expected to result in any material
adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or
business prospects of the Company and its
Subsidiaries considered as one enterprise or to
materially and adversely affect their properties or
assets or (C) might reasonably be expected to
materially and adversely affect the consummation of
the transactions contemplated by this Agreement or
the International Purchase Agreement; all pending
legal or governmental proceedings to which the
Company or any of its Subsidiaries is a party or of
which any of their respective property or assets is
the subject which are not described in the
Registration Statement and the Prospectuses,
including ordinary routine litigation incidental to
their business, are, considered in the aggregate,
not material.
(xiv) There are no contracts or documents
which are required to be described in the
Registration Statement or the Prospectuses or to be
filed as exhibits to the Registration Statement by
the 1933 Act or the 1933 Act Regulations which have
not been so described or filed.
(xv) Each of the Company and its Subsidiaries
has filed all federal, state, local and foreign
income and franchise tax returns required to be
filed through the date hereof, except insofar as
the failure to file any such returns would not have
a material adverse effect on the condition,
financial or otherwise, or on the earnings,
business affairs or business prospects of the
Company and its Subsidiaries considered as one
enterprise, and has paid all taxes due as shown
thereon, and except for such taxes, if any, as are
being contested in good faith and as to which
adequate reserves have been provided, there is no
tax deficiency asserted against the Company or any
of its Subsidiaries which, if determined adversely
to the Company or any of its Subsidiaries, would
have a material adverse effect on the condition,
financial or otherwise, or on the earnings,
business affairs or business prospects of the
Company and its Subsidiaries considered as one
enterprise.
(xvi) The Company and its Subsidiaries have
good and marketable title to all material
properties and assets described in the Prospectuses
as owned by them and valid, subsisting and
enforceable leases for all of the material
properties and assets, real or personal, described
in the Prospectuses as leased by them, in each case
free and clear of any security interests,
mortgages, pledges, liens, encumbrances or charges
of any kind, other than those which (A) are
described in the Prospectuses or (B) could not
materially impair or interfere with the use
currently made by the Company or its Subsidiaries
of the properties or assets to which it applies or
otherwise have a material adverse effect on the
condition, financial or otherwise, or on the
earnings, business affairs or business prospects of
the Company and its Subsidiaries considered as one
enterprise.
(xvii) The Company and its Subsidiaries own
or possess, or can acquire on reasonable terms,
adequate rights to use the patents, patent rights,
licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented or
unpatentable proprietary or confidential
information, systems or procedures),
trademarks, service marks and trade names
(collectively, "patent and proprietary rights")
necessary to conduct the business now conducted by
them, and neither the Company nor any of its
Subsidiaries has received any notice or is
otherwise aware of any infringement of or
conflict with asserted rights of others with
respect to any patent and proprietary rights,
except where such infringement or conflict, if the
subject of an unfavorable decision, ruling or
finding, would not result in a material adverse
change in the condition, financial or otherwise, or
the earnings, business affairs or business
prospects of the Company and its Subsidiaries
considered as one enterprise.
(xviii) The Company and its Subsidiaries
possess such licenses, permits, consents, orders,
certificates or authorizations issued by
appropriate federal, state, foreign or local
regulatory agencies or bodies as are necessary to
conduct the business now operated by them as
described in the Prospectuses, except as disclosed
in the Prospectuses and except where the failure to
possess such licenses, permits, consents, orders,
certificates or authorizations would not have a
material adverse effect on the condition, financial
or otherwise, or on the earnings, business affairs
or business prospects of the Company and its
Subsidiaries considered as one enterprise; and
neither the Company nor any of its Subsidiaries has
received any notice of proceedings relating to the
revocation or modification of any such licenses,
permits, consents, orders, certificates or
authorizations which, if the subject of an
unfavorable decision, ruling or finding, would have
a material adverse effect on the condition,
financial or otherwise, or on the earnings,
business affairs or business prospects of the
Company and its Subsidiaries considered as one
enterprise.
(xix) Neither the Company nor any of its
Subsidiaries is in violation of any existing
applicable law, ordinance, governmental rule or
regulation or court decree to which the Company or
any of its Subsidiaries or any of their respective
properties and assets are subject, except where
such violation would not have a material adverse
effect on the condition, financial or otherwise, or
on the earnings, business affairs or business
prospects of the Company and its Subsidiaries
considered as one enterprise; without limiting the
generality of the foregoing, neither the Company
nor any of its subsidiaries has violated (A) any
existing applicable foreign, federal, state or
local law or regulation relating to the protection
of human health and the environment, including, but
not limited to, any such law pertaining to
hazardous or toxic substances or wastes, pollutants
or contaminants (collectively, "Environmental
Laws"), (B) the terms of any licenses, permits,
consents, orders, certificates or authorizations
required of them under applicable Environmental
Laws, (C) any federal or state law relating to
discrimination in the hiring, promotion or pay of
employees or any applicable federal or state wages
and hours laws, or (D) any provisions of the
Employee Retirement Income Security Act or the
rules and regulations promulgated thereunder,
except as disclosed in the Prospectus and except
for any such violations which would not have a
material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or
business prospects of the Company and its
Subsidiaries considered as one enterprise.
(xx) The Company has reasonably concluded
that, except as disclosed in the Prospectus, the
costs and liabilities associated with compliance
with Environmental Laws are not likely to have a
material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or
business prospects of the Company and its
Subsidiaries considered as one enterprise.
(xxi) The Company and its Subsidiaries
maintain books and records and internal accounting
controls which provide reasonable assurance that
(A) transactions are executed in all material
respects in accordance with management's general or
specific authorization, (B) transactions are
recorded in all material respects as necessary to
permit preparation of their financial statements
and to maintain accountability for their assets and
(C) access to assets that are material to the
Company or its Subsidiaries is permitted only in
accordance with management's general or specific
authorization.
(xxii) At Closing Time, each of the
Reorganization Agreements (as hereinafter defined)
to which the Company or any of its Subsidiaries are
or are proposed to be parties will be duly
authorized, executed and delivered by the Company
and each of its Subsidiaries (to the extent that
each of them is proposed to be a party thereto).
Substantially all of the assets to be transferred
by Tandy Marketing Canada (as hereinafter defined)
to Old O'Sullivan as described in the Prospectus
have been transferred to Old O'Sullivan.
(xxiii) The execution, delivery and
performance by the Company and each of its
Subsidiaries of the Reorganization Agreements to
which each of them is a party or is proposed to be
a party and the consummation by the Company and
each of its Subsidiaries of the transactions
contemplated therein will not conflict with or
constitute a breach or violation of, or default
under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property
or assets of the Company or any of its Subsidiaries
pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or
instrument to which the Company or any of its
Subsidiaries is a party or by which it or any of
them is bound, or to which any of the property or
assets of the Company or any of its Subsidiaries is
subject, nor will such action result in any breach
or violation of, or default under, the provisions
of the charter or bylaws of the Company or any of
its Subsidiaries or of any existing applicable
law, administrative regulation or administrative or
court decree, in each case, except as disclosed in
the Prospectuses and except for such conflicts,
breaches, violations, defaults, liens, charges or
encumbrances that would not have a material adverse
effect on the condition, financial or otherwise, or
on the earnings, business affairs or business
prospects of the Company and its Subsidiaries
considered as one enterprise.
(xxiv) Neither the Company nor any of its
Subsidiaries is an "investment company" or a
company "controlled" by an "investment company"
within the meaning of the Investment Company Act of
1940, as amended.
(xxv) The Company and its Subsidiaries have
complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida)
relating to doing business with the Government of
Cuba or any person or affiliate located in Cuba.
(b) The Selling Stockholder further represents and
warrants to each of the U.S. Underwriters as of the date
hereof and as of the U.S. Representation Date as follows:
(i) At Closing Time, the Selling Stockholder
will be the sole record and beneficial owner of the
Initial Securities, and will have valid and
marketable title to the Initial Securities, free
and clear of any claim, lien, security interest,
encumbrance, restriction on transfer or other
defect in title; upon delivery of and payment for
the Initial Securities pursuant to this Agreement
and the International Purchase Agreement, the
Underwriters will acquire valid and marketable
title to the Initial Securities, free and clear of
any claim, lien, security interest, encumbrance,
restriction on transfer or other defect in title.
(ii) This Agreement has been duly authorized,
executed and delivered by the Selling Stockholder
and, at the U.S. Representation Date, the U.S.
Pricing Agreement will be duly authorized, executed
and delivered by the Selling Stockholder.
(iii) The execution, delivery and performance
of this Agreement, the International Purchase
Agreement, the U.S. Pricing Agreement and the
International Pricing Agreement by the Selling
Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated herein
and therein will not conflict with or constitute a
breach or violation of, or a default under, or
result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets
of the Selling Stockholder pursuant to, any
contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to
which the Selling Stockholder is a party or by
which it is bound, or to which any of the property
or assets of the Selling Stockholder is subject,
nor will such action result in any breach or
violation of, or default under, the provisions of
the charter or bylaws of the Selling Stockholder or
of any existing applicable law, administrative
regulation or administrative or court decree.
(iv) No authorization, approval or consent
of, or registration or filing with, any court or
governmental authority or agency is required for
the execution, delivery or performance by the
Selling Stockholder of this Agreement, the
International Purchase Agreement, the U.S. Pricing
Agreement or the International Pricing Agreement or
the consummation by the Selling Stockholder of the
transactions contemplated herein and therein,
except such as may be required under the 1933 Act,
the 1933 Act Regulations, the 1934 Act or the 1934
Act Regulations or under the securities laws of any
state or other jurisdiction.
(v) At Closing Time, each of the
Reorganization Agreements to which the Selling
Stockholder is proposed to be a party will be duly
authorized, executed and delivered by the Selling
Stockholder; at Closing Time, each of the
Reorganization Agreements to which the Selling
Stockholder is proposed to be a party will
constitute a valid and binding obligation of the
Selling Stockholder, enforceable against the
Selling Stockholder in accordance with its terms
(except to the extent that the enforceability
thereof is subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally
and (ii) general principles of equity, whether such
principles are considered in a proceeding at law or
in equity).
(vi) The execution, delivery and performance
by the Selling Stockholder of the Reorganization
Agreements to which the Selling Stockholder is or
is proposed to be a party and the consummation by
the Selling Stockholder of the transactions
contemplated therein will not conflict with or
constitute a breach or violation of, or a default
under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property
or assets of the Selling Stockholder pursuant to,
any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to
which the Selling Stockholder is a party or by
which it is bound, or to which any of the property
or assets of the Selling Stockholder is subject,
nor will such action result in any breach or
violation of, or default under, the provisions of
the charter or bylaws of the Selling Stockholder or
of any existing applicable law, administrative
regulation or administrative or court decree, in
each case, except as disclosed in the Prospectuses
and except for such conflicts, breaches,
violations, defaults, liens, charges or
encumbrances that would not affect in any material
respect the transactions contemplated by this
Agreement or the International Purchase Agreement
and would not have a material adverse effect on the
condition, financial or otherwise, or on the
earnings, business affairs or business prospects of
the Selling Stockholder and its subsidiaries
considered as one enterprise.
(c) Any certificate signed by any officer of the
Company delivered to the U.S. Representatives or to counsel
for the U.S. Underwriters under or in connection with this
Agreement or at Closing Time or any Date of Delivery (as
hereinafter defined) shall be deemed a representation and
warranty by the Company to each U.S. Underwriter as to the
matters covered thereby; and any certificate signed by any
officer of the Selling Stockholder and delivered to the U.S.
Representatives or to counsel for the U.S. Underwriters under
or in connection with this Agreement or at Closing Time or
any Date of Delivery shall be deemed a representation and
warranty by the Selling Stockholder to each U.S. Underwriter
as to the matters covered thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters;
Reorganization Transactions; Closing.
(a) On the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Selling Stockholder agrees
to sell to each U.S. Underwriter, severally and not jointly,
and each U.S. Underwriter, severally and not jointly, agrees
to purchase from the Selling Stockholder, at the price per
share set forth in the U.S. Pricing Agreement, the number of
Initial U.S. Securities set forth in Schedule A opposite the
name of such U.S. Underwriter (except as otherwise provided
in the U.S. Pricing Agreement), plus any additional number of
Initial U.S. Securities which such U.S. Underwriter may
become obligated to purchase pursuant to the provisions of
Section 10 hereof, subject, in each case, to such adjustments
as the U.S. Representatives in their discretion shall make to
eliminate any sales or purchases of fractional securities.
(i) If the Company has elected not to rely
upon Rule 430A of the 1933 Act Regulations, the
initial public offering price of the Securities and
the purchase price per share to be paid by the
several U.S. Underwriters for the U.S. Securities
have each been determined and set forth in the U.S.
Pricing Agreement, dated the date hereof, and an
amendment to the Registration Statement and the
Prospectuses will be filed before the Registration
Statement becomes effective.
(ii) If the Company has elected to rely upon
Rule 430A of the 1933 Act Regulations, the purchase
price per share to be paid by the several U.S.
Underwriters for the U.S. Securities shall be an
amount equal to the initial public offering price,
less an amount per share to be determined by
agreement among the Company, the Selling
Stockholder and the U.S. Representatives. The
initial public offering price per share of the
Securities shall be a fixed price to be determined
by agreement among the Company, the Selling
Stockholder and the U.S. Representatives and the
Selling Stockholder. The initial public offering
price per share and the purchase price, when so
determined, shall be set forth in the U.S. Pricing
Agreement. In the event that such prices have not
been agreed upon and the U.S. Pricing Agreement has
not been executed and delivered by the parties
thereto by the close of business on the fourth
business day following the date of this Agreement,
this Agreement shall terminate forthwith, without
liability of any party to any other party, unless
otherwise agreed to by the Company, the Selling
Stockholder and the U.S. Representatives.
Notwithstanding the foregoing, the provisions of
Sections 4(a), 6 and 7 hereof shall remain in
effect following any such termination.
(b) In addition, on the basis of the
representations and warranties herein contained and subject
to the terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters, severally and
not jointly, to purchase from the Company an aggregate of up
to an additional 1,800,000 shares of Common Stock, together
with the Rights associated with such shares, at the price per
share set forth in the U.S. Pricing Agreement and the
International Pricing Agreement, of which 1,440,000 shares
and associated Rights shall be the pro rata portion for the
U.S. Underwriters and 360,000 shares and associated Rights
shall be the pro rata portion for the Managers. The option
hereby granted will expire on the 30th day after the date the
Registration Statement becomes effective or, if the Company
has elected to rely on Rule 430A of the 1933 Act Regulations,
the 30th day after the U.S. Representation Date, and may be
exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial
Securities upon notice by the U.S. Representatives and the
Lead Managers to the Company setting forth the aggregate
number of Option Securities as to which the several
Underwriters are then exercising said option and the time and
date of payment and delivery for such Option Securities. Any
such time and date of delivery for the U.S. Option Securities
(a "Date of Delivery") shall be determined by the U.S.
Representatives but shall be not earlier than two nor later
than seven full business days after the exercise of said
option, nor in any event prior to Closing Time, unless
otherwise agreed upon by the U.S. Representatives and the
Company. If the option is exercised as to all or any portion
of the U.S. Option Securities, each of the U.S. Underwriters,
acting severally and not jointly, will purchase from the
Company that proportion of the number of U.S. Option
Securities then being purchased which the number of Initial
U.S. Securities set forth in Schedule A opposite the name of
such U.S. Underwriter (plus any additional number of Initial
U.S. Securities which such U.S. Underwriter may become
obligated to purchase pursuant to the provisions of Section
10 hereof) bears to the total number of Initial U.S.
Securities (except as otherwise provided in the U.S. Pricing
Agreement), subject, in each case, to such adjustments as the
U.S. Representatives in their discretion shall make to
eliminate any sales or purchases of fractional securities.
For purposes of this Agreement, the term "business day" means
a day on which the New York Stock Exchange is open for
trading.
(c) The Selling Stockholder and the Company agree
with the several Underwriters that, immediately prior to
Closing Time, (i) the Selling Stockholder will transfer to
the Company, in exchange for the issuance by the Company of
14,999,900 shares of Common Stock, together with the Rights
associated with such shares (the receipt of which shares and
associated Rights shall be subject to the obligations of the
Selling Stockholder to sell the Initial Securities to the
Underwriters pursuant to this Agreement and the International
Purchase Agreement), all the issued and outstanding shares of
capital stock of O'Sullivan Industries, Inc., a Delaware
corporation and a wholly owned subsidiary of the Selling
Stockholder ("Old O'Sullivan"), and (ii) the Company will
accept such transfer and will issue such shares of Common
Stock and associated Rights to the Selling Stockholder. The
foregoing transactions will be effected in accordance with a
Stock Exchange Agreement (the "Stock Exchange Agreement") to
be entered into between the Selling Stockholder and the
Company after the execution and delivery of this Agreement
but prior to Closing Time. In addition, (i) Tandy Marketing
(Canada) Ltd., an Alberta corporation ("Tandy Marketing
Canada"), has transferred to Old O'Sullivan certain assets
located in Canada that are used in connection with the
business conducted by Old O'Sullivan, (ii) Tandy Corporation,
the Selling Stockholder and the Company will enter into a
Cross Indemnification Agreement (the "Cross Indemnification
Agreement") prior to Closing Time pursuant to which the
parties will agree to indemnify each other for certain claims
and liabilities as specified therein, (iii) Tandy
Corporation, the Selling Stockholder and the Company will
enter in to a Tax Sharing and Tax Benefit Reimbursement
Agreement (the "Tax Agreement") prior to Closing Time
pursuant to which (A) the parties will agree upon the
allocation of certain federal, state and local taxes of Old
O'Sullivan (including any adjustments to such taxes), (B) Old
O'Sullivan and Tandy Corporation will agree to make elections
under Sections 338(g) and 338(h)(10) of the Internal Revenue
Code of 1986, as amended, and (C) Old O'Sullivan will agree
to pay to the Selling Stockholder, as additional purchase
price under the Stock Exchange Agreement, amounts
approximately equal to certain federal tax benefits related
to the increase in the tax basis of Old O'Sullivan's assets
resulting from the consummation of the transactions
contemplated by the Stock Exchange Agreement and the Sections
338(g) and 338(h)(10) elections. The Stock Exchange
Agreement, Cross Indemnification Agreement and Tax Agreement
will be substantially in the respective forms filed as
exhibits to the Registration Statement. The Stock Exchange
Agreement, Cross Indemnification Agreement and Tax Agreement
are hereinafter collectively referred to as the
"Reorganization Agreements." Old O'Sullivan and each other
direct or indirect subsidiary of the Company as of the
Closing Time are hereinafter collectively referred to as the
"Subsidiaries."
(d) Payment of the purchase price for, and
delivery of certificates evidencing the Initial U.S.
Securities to be purchased by the U.S. Underwriters shall be
made at the office of Baker & Botts, L.L.P., 2001 Ross
Avenue, Dallas, Texas 75201, or at such other place as shall
be agreed upon by the U.S. Representatives, the Company and
the Selling Stockholder, at 9:00 a.m., Dallas, Texas time, on
the fifth business day (unless postponed in accordance with
the provisions of Section 10 hereof) following the date of
the execution of the U.S. Pricing Agreement or such other
time not later than ten business days after such date as
shall be agreed upon by the U.S. Representatives, the Company
and the Selling Stockholder (such time and date of payment
and delivery being hereinafter referred to as "Closing
Time"). In addition, in the event that any or all of the U.S.
Option Securities are purchased by the U.S. Underwriters,
payment of the purchase price for, and delivery of
certificates for, such U.S. Option Securities shall be made
at the above-mentioned office of Baker & Botts, L.L.P., or at
such other place as shall be mutually agreed upon by the U.S.
Representatives and the Company, on each Date of Delivery as
specified in the notice from the U.S. Representatives to the
Company. Payment shall be made to the Selling Stockholder,
with respect to the Initial U.S. Securities, and to the
Company, with respect to any U.S. Option Securities, by
certified or official bank check or checks drawn in New York
Clearing House funds or similar next-day funds payable to the
order of the Selling Stockholder or the Company, as the case
may be, against delivery to the U.S. Representatives for the
respective accounts of the U.S. Underwriters of certificates
for the U.S. Securities to be purchased by them.
Certificates evidencing the Initial U.S. Securities and the
U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S.
Representatives may request in writing at least two business
days before Closing Time or the Date of Delivery, as the case
may be. It is understood that each U.S. Underwriter has
authorized the U.S. Representatives, for its account, to
accept delivery of, receipt for, and make payment of the
purchase price for, the U.S. Securities which it has agreed
to purchase. The U.S. Representatives, individually and not
as representatives of the U.S. Underwriters, may (but shall
not be obligated to) make payment of the purchase price for
the U.S. Securities to be purchased by any U.S. Underwriter
whose check has not been received by Closing Time or the Date
of Delivery, as the case may be, but such payment shall not
relieve such U.S. Underwriter from its obligations hereunder.
The certificates evidencing the Initial U.S. Securities and
the U.S. Option Securities to be purchased by the U.S.
Underwriters will be made available in New York City for
examination and packaging by the U.S. Representatives not
later than 10:00 a.m. on the last business day prior to
Closing Time or the Date of Delivery, as the case may be.
SECTION 3. Certain Covenants of the Company. The
Company covenants with each of the U.S. Underwriters asfollows:
(a) If the Company has elected not to rely upon
Rule 430A of the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission an amendment to
the Registration Statement that sets forth the information
specified in Section 2(a)(i) hereof and will make every
reasonable effort to cause the Registration Statement to
become effective as promptly as practicable. If the Company
has elected to rely upon Rule 430A of the 1933 Act
Regulations, the Company will promptly prepare and file with
the Commission pursuant to Rule 424 of the 1933 Act
Regulations Prospectuses that comply in all material respects
with the 1933 Act and the 1933 Act Regulations and that set
forth the information specified in Section 2(a)(ii) hereof
and all other information omitted from the prospectuses
included in the Registration Statement as permitted by Rule
430A.
(b) The Company will notify the U.S.
Representatives immediately, and confirm the notice in
writing, (i) of the effectiveness of the Registration
Statement and any amendment thereto (including any
post-effective amendment), (ii) of the mailing or delivery to
the Commission for filing of any revised prospectus which the
Company proposes for use by the U.S. Underwriters or the
Managers in connection with the offering of the Securities
which differs from the prospectuses on file at the Commission
at the time the Registration Statement becomes effective,
(iii) of the receipt of any comments from the Commission with
respect to the Registration Statement or the Prospectuses,
(iv) of any request by the staff of the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information,
and (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement,
the suspension of the registration or qualification of the
Securities for offering or sale under the securities laws of
any state or jurisdiction or the initiation or threat of any
proceedings for any such purpose. The Company will make
every reasonable effort to prevent the issuance of any such
stop order or of any order suspending such registration or
qualification and, if any such order is issued, to obtain the
lifting thereof as promptly as practicable.
(c) The Company will give the U.S. Representatives
notice of its intention to file or prepare any amendment to
the Registration Statement (including any post-effective
amendment) or any amendment or supplement to the Prospectuses
(including any revised prospectus which the Company proposes
for use by the U.S. Underwriters or the Managers in
connection with the offering of the Securities which differs
from the prospectuses on file at the Commission at the time
the Registration Statement becomes effective, whether or not
such revised prospectus is required to be filed pursuant to
Rule 424(b) of the 1933 Act Regulations), will furnish the
U.S. Representatives with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such
amendment or supplement to which the U.S. Representatives
shall reasonably object unless the Company shall have (i)
otherwise fully complied with its obligations contained in
this subsection (c) and (ii) received a written opinion of
counsel to the effect that such amendment or supplement is
legally required under the 1933 Act and the 1933 Act
Regulations.
(d) The Company has delivered or will deliver to
the U.S. Representatives five signed copies of the
Registration Statement as originally filed and each amendment
thereto (including exhibits filed therewith) and has
delivered or will deliver to the U.S. Representatives as many
conformed copies of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) as the
U.S. Representatives may reasonably request for delivery to
each of the U.S. Underwriters.
(e) The Company will furnish to each U.S.
Underwriter, from time to time during the period when the
U.S. Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the U.S.
Prospectus (as amended or supplemented) as such U.S.
Underwriter may reasonably request for the purposes
contemplated by the 1933 Act, the 1933 Act Regulations, the
1934 Act or the 1934 Act Regulations.
(f) If at any time when a prospectus relating to
the Securities is required to be delivered, any event shall
occur as a result of which it is necessary, in the reasonable
judgment of the U.S. Representatives based on the advice of
their counsel, to amend or supplement the U.S. Prospectus in
order to ensure that the U.S. Prospectus does not contain an
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the
time it is delivered to a purchaser, not misleading, the
Company will forthwith amend or supplement the U.S.
Prospectus (and will provide drafts thereof to the U.S.
Underwriters and provide them a reasonable opportunity to
review such drafts and provide comments with respect thereto)
so that, as so amended or supplemented, the U.S. Prospectus
will not contain such an untrue statement or omission, and
the Company will furnish to the U.S. Underwriters a
reasonable number of copies of any such amendment or
supplement to the U.S. Prospectus.
(g) The Company will endeavor, in cooperation with
the U.S. Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such states
and other jurisdictions of the United States as the U.S.
Representatives may designate; provided, however, that the
Company shall not be obligated (i) to qualify as a foreign
corporation in any jurisdiction in which it is not so
qualified, (ii) to take any action that would subject it to
income or franchise taxation in any jurisdiction in which
would not otherwise be subject to such taxation, (iii) to
execute a consent to service of process under the laws of any
jurisdiction (except service of process with respect to the
offering and sale of the Securities). In each jurisdiction
in which the Securities have been qualified as above
provided, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to
continue such qualification in effect for so long as it may
be required to complete the distribution of such Securities.
(h) The Company will make generally available to
its security holders as soon as practicable, but not later
than 90 days after the close of the period covered thereby,
an earnings statement (which need not be audited, but in form
complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a twelve-month period beginning not
later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in said Rule 158)
of the Registration Statement.
(i) The Company will use the net proceeds, if any,
received by it from the sale of the Option Securities in the
manner specified in the Prospectus under "Use of Proceeds."
(j) The Company will file with the Commission such
reports on Form SR as may be required pursuant to Rule 463 of
the 1933 Act Regulations.
(k) The Company will use every reasonable effort
to cause the Securities to be listed on the New York Stock
Exchange.
SECTION 4. Certain Covenants of the Company and
the Selling Stockholder. The Company and the Selling
Stockholder covenant with each of the U.S. Underwriters as
follows:
(a) The Company and Selling Stockholder will be
jointly and severally responsible for and will pay all
expenses incident to the performance of the obligations of
the Company and the Selling Stockholder under this Agreement,
including (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto,
(ii) the printing of this Agreement and the U.S. Pricing
Agreement, (iii) the preparation, sale or issuance and
delivery of the certificates evidencing the U.S. Securities
to the U.S. Underwriters, (iv) the reasonable fees and
disbursements of the Company's counsel and accountants, (v)
the expenses in connection with the qualification of the
Securities under state securities laws in accordance with the
provisions of Section 3(g) hereof, including filing fees and
the fees and disbursements of counsel for the U.S.
Underwriters in connection therewith and in connection with
the preparation of the Blue Sky Survey, (vi) the printing and
delivery to the U.S. Underwriters as provided in this
Agreement of copies of the Registration Statement as
originally filed and of each amendment thereto, of each of
the preliminary prospectuses, and of the Prospectuses and any
amendments or supplements thereto, (vii) the printing and
delivery to the U.S. Underwriters of copies of the Blue Sky
Survey, (viii) the fees and expenses incurred in connection
with any filings required to be made by the U.S. Underwriters
with the National Association of Securities Dealers, Inc. in
connection with the offering and sale of the Securities and
(viii) the fees and expenses incurred in connection with the
listing of the Securities on the New York Stock Exchange.
(b) If this Agreement is terminated by the U.S.
Representatives in accordance with the provisions of Section
5 hereof or Section 9(a)(i) hereof, the Company and the
Selling Stockholder will be jointly and severally responsible
for and will reimburse the U.S. Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the U.S. Underwriters.
(c) During the period of 180 days from the date of
the U.S. Pricing Agreement, the Company and the Selling
Stockholder will not, without the prior written consent of
the U.S. Representatives (which consent will not be
unreasonably withheld), directly or indirectly, sell, offer
to sell, grant any option for the sale of, or otherwise
dispose of any shares of Common Stock or any security
convertible into or exchangeable or exercisable for any
shares of Common Stock, except for (i) the issuance and sale
by the Company to the Selling Stockholder of 14,999,900
shares of Common Stock and associated Rights in accordance
with the Stock Exchange Agreement, (ii) the sale by the
Selling Stockholder of the Initial Securities to the
Underwriters in accordance with this Agreement and the
International Underwriting Agreement, (iii) the sale by the
Selling Stockholder of 236,000 shares of Common Stock,
together with the Rights associated with such shares, to
certain members of the Company's management and their
affiliates as contemplated by the Management Prospectus, (iv)
the issuance by the Company of the Option Securities to the
Underwriters in accordance with this Agreement and the
International Underwriting Agreement and (v) the grant by the
Company of options to purchase shares of Common Stock or the
issuance by the Company of shares of Common Stock pursuant to
the O'Sullivan Incentive Stock Plan and other benefit plans
as disclosed in the Prospectuses.
(d) Prior to the time at which the distribution of
the Securities is completed, neither the Company nor the
Selling Stockholder shall, directly or indirectly, (i) take
any action designed to cause or result in, or that
constitutes or might reasonably be expected to constitute,
stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the
Securities or (ii) bid for, purchase or pay anyone any
compensation for soliciting purchases of, the Securities.
SECTION 5. Conditions to Obligations of the U.S.
Underwriters. The obligations of the several U.S.
Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling
Stockholder herein contained at the date hereof and at
Closing Time, to the performance by the Company and the
Selling Stockholder of their respective obligations hereunder
required to be performed prior to or at Closing Time, and to
the following further conditions:
(a) The Registration Statement shall have become
effective not later than 5:30 p.m. on the date hereof or at
such later time and date as may be approved by the U.S.
Representatives; and at Closing Time and any Date of
Delivery, as the case may be, no stop order suspending the
effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission. If the Company has elected
to rely upon Rule 430A of the 1933 Act Regulations,
Prospectuses that set forth the initial public offering price
per share of the Securities, the purchase price per share to
be paid by the U.S. Underwriters, and any other information
previously omitted from the effective Registration Statement
pursuant to such Rule 430A shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations within the prescribed time period, and prior to
Closing Time the Company shall have provided evidence
reasonably satisfactory to the U.S. Representatives of such
timely filing, or a post-effective amendment providing such
information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A of
the 1933 Act Regulations.
(b) At Closing Time the U.S. Representatives shall
have received:
(1) The favorable opinion, dated as of Closing
Time, of Fried, Frank, Harris, Shriver & Jacobson,
counsel for the Company and the Selling Stockholder, in
form and substance reasonably satisfactory to the U.S.
Representatives, 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 Delaware.
(ii) The Company has corporate power and
authority to own, lease and operate its properties
and to conduct its business substantially as
described in the Prospectus.
(iii) To the knowledge of such counsel, the
Company is duly licensed or qualified to conduct
business as a foreign corporation and is in good
standing in each jurisdiction set forth on Annex A
to the opinion of such Counsel.
(iv) Each of the Subsidiaries of the Company
is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation.
(v) The authorized, issued and outstanding
capital stock of the Company is as set forth in the
Prospectuses under the column entitled "As
Adjusted" under the caption "Capitalization."
(vi) The 15,000,000 shares of Common Stock
heretofore issued by the Company to the Selling
Stockholder have been duly authorized and are
validly issued, fully paid and nonassessable; the
1,800,000 shares of Common Stock subject to the
option granted pursuant to Section 2(b) hereof have
been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and the
International Purchase Agreement and, when issued
and delivered by the Company in accordance with
this Agreement and the International Purchase
Agreement against payment of the consideration set
forth herein and therein, will be validly issued,
fully paid and nonassessable.
(vii) The issuance of the Securities is not
subject to any preemptive or other similar rights
to subscribe for or purchase the same arising under
the DGCL, the Certificate of Incorporation or
By-laws of the Company or any of the agreements,
contracts or instruments filed as Exhibits 10.1
through 10.14 to the Registration Statement.
(viii) Assuming that the Underwriters have
taken physical possession of the Initial Securities
to be sold by the Selling Stockholder at the
Closing Time in good faith without notice of any
adverse claim as such term is used in Section 8-302
of the Uniform Commercial Code in effect in the
State of New York, upon delivery of such Securities
in registered form issued to the Underwriters and
payment for such Securities as contemplated in this
Agreement and the International Purchase Agreement,
the Underwriters will acquire such Securities free
and clear of all security interests, liens,
encumbrances, equities or other adverse claims.
(ix) The Common Stock conforms as to legal
matters in all material respects to the statements
concerning the Common Stock of the Company
contained in the Prospectuses under the caption
"Description of Capital Stock Common Stock." The
statements contained in the Prospectuses under the
caption "Description of Capital Stock," insofar as
they purport to summarize certain provisions of the
Company's Certificate of Incorporation and By-laws,
fairly summarize in all material respects such
provisions.
(x) The Rights conform as to legal matters in
all material respects to the statements concerning
the Rights contained in the Prospectuses under the
caption "Description of Capital Stock Stockholder
Rights Plan."
(xi) The Company has all necessary corporate
power and authority to execute and deliver this
Agreement, the International Purchase Agreement,
the U.S. Pricing Agreement and the International
Pricing Agreement and to perform its obligations
hereunder and thereunder; this Agreement, the
International Purchase Agreement, the U.S. Pricing
Agreement and the International Pricing Agreement
have each been duly authorized, executed and
delivered by the Company, and each constitutes a
valid and binding agreement of the Company,
enforceable in accordance with its terms (except to
the extent that enforceability hereof or thereof is
subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws
now or hereafter in effect affecting creditors'
rights generally and (ii) general principles of
equity (including, without limitation, standards of
materiality, good faith, fair dealing and
reasonableness), whether such principles are
considered in a proceeding at law or in equity, and
except that the rights to indemnification and
contribution granted hereunder and thereunder may
be limited by applicable federal and state
securities laws or the public policy underlying
such laws).
(xii) The Selling Stockholder has all
necessary corporate power and authority to execute
and deliver this Agreement, the International
Purchase Agreement, the U.S. Pricing Agreement and
the International Pricing Agreement and to perform
its obligations hereunder and thereunder; this
Agreement, the International Purchase Agreement,
the U.S. Pricing Agreement and the International
Pricing Agreement have each been duly authorized,
executed and delivered by the Selling Stockholder,
and each constitutes a valid and binding agreement
of the Selling Stockholder, enforceable in
accordance with its terms (except to the extent
that enforceability hereof or thereof is subject
to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws
now or hereafter in effect affecting creditors'
rights generally and (ii) general principles of
equity (including, without limitation, standards of
materiality, good faith, fair dealing and
reasonableness, whether such principles are
considered in a proceeding at law or in equity),
and except that the rights to indemnification and
contribution granted hereunder and thereunder may
be limited by applicable federal and state
securities laws or the public policy underlying
such laws).
(xiii) The execution, delivery and performance
by the Company of this Agreement, the International
Purchase Agreement, the U.S. Pricing Agreement and
the International Pricing Agreement and the
consummation by the Company of the transactions
herein and therein contemplated (i) will not
violate (A) any law or present regulation of any
governmental agency or authority of the United
States of America or the State of New York or the
Delaware General Corporation Law (the "DGCL") or
(B) any agreement binding upon the Company or any
of its Subsidiaries or their respective properties
or any court decree or order binding upon the
Company or any of its Subsidiaries (such opinion
being limited to the decrees or orders that are set
forth on Annex B to the opinion of such counsel and
the agreements, contracts and instruments filed as
Exhibits 10.1 through 10.14 to the Registration
Statement (collectively, the "Covered Decrees,
Orders, and Agreements")), (ii) will not result in
a breach or violation of the terms or provisions of
the Certificate of Incorporation or By-laws of the
Company or any of its Subsidiaries, and (iii) will
not result in or require the creation or imposition
of any security interest or lien upon any of their
properties pursuant to the provisions of any
agreement binding upon the Company or any of its
Subsidiaries or their respective properties (such
opinion being limited to the Covered Decrees,
Orders and Agreements) (except for purposes of
clause (i) and (iii), where such a violation or
breach or resulting security interest or lien would
not affect in any material respect the transactions
contemplated by this Agreement or the International
Purchase Agreement or have a material adverse
effect on the condition (financial or otherwise),
business, properties or results of operation of the
Company, Old O'Sullivan and their respective
subsidiaries, taken as a whole).
(xiv) The execution, delivery and performance
by the Selling Stockholder of this Agreement, the
International Purchase Agreement, the U.S. Pricing
Agreement and the International Pricing Agreement
and the consummation by the Selling Stockholder of
the transactions herein and therein contemplated
(i) will not violate (A) any law or present
regulation of any governmental agency or authority
of the United States of America or the State of New
York or the DGCL or (B) any agreement binding upon
the Selling Stockholder or its properties or any
court decree or order binding upon the Selling
Stockholder (such opinion being limited to (1) the
Covered Decrees, Orders, and Agreements and (2) the
agreements, contracts and instruments to which the
Selling Stockholder or its subsidiaries are parties
or by which they are bound set forth on Annex C to
the opinion of such counsel), (ii) will not result
in a breach or violation of the terms or provisions
of the Certificate of Incorporation or By-laws of
the Selling Stockholder, and (iii) will not result
in or require the creation or imposition of any
security interest or lien upon any of its
properties pursuant to the provisions of any
agreement binding upon the Selling Stockholder or
its properties (such opinion being limited to (1)
the Covered Decrees, Orders and Agreements and (2)
the agreements, contracts and instruments to which
the Selling Stockholder or its subsidiaries are
parties or by which they are bound set forth on
Annex C hereto) (except for purposes of clause (i)
and (iii), where such a violation or breach or
resulting security interest or lien would not
affect in any material respect the transactions
contemplated by this Agreement or the International
Purchase Agreement or have a material adverse
effect on the condition (financial or otherwise),
business, properties or results of operations of
the Selling Stockholder and its subsidiaries, taken
as a whole).
(xv) No authorization, approval or consent
of, or registration or filing with, any court or
governmental authority or agency of the United
States or the State of New York or under the DGCL
is required for the execution, delivery or
performance by the Company of this Agreement, the
International Purchase Agreement, the U.S. Pricing
Agreement or the International Pricing Agreement or
the consummation by the Company of the transactions
contemplated herein and therein, except such as
have been obtained or made under the 1933 Act, the
1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations.
(xvi) No authorization, approval or consent
of, or registration or filing with, any court or
governmental authority or agency of the United
States or the State of New York or under the DGCL
is required for the execution, delivery or
performance by the Selling Stockholder of this
Agreement, the International Purchase Agreement,
the U.S. Pricing Agreement or the International
Pricing Agreement or the consummation by the
Selling Stockholder of the transactions
contemplated herein and therein, except
such as have been obtained or made under the 1933
Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations.
(xvii) The Registration Statement became
effective under the 1933 Act on January 26, 1994
and any required filing of the Prospectuses
pursuant to Rule 424(b) of the 1933 Act Regulations
has been made within the time period required by
such Rule. To the knowledge of such counsel, no
stop order suspending the effectiveness of the
Registration Statement has been issued and no
proceeding for that purpose is pending or
threatened by the Commission.
(xviii) The Registration Statement and the
Prospectuses and any amendments or supplements
thereto (except for (i) the financial statements,
notes or schedules thereto and (ii) other financial
information and statistical information included in
the Registration Statement or Prospectuses, as to
both of which such counsel need express no opinion)
appear on their face to be appropriately responsive
as to form in all material respects to the
requirements of the 1933 Act and the 1933 Act
Regulations.
(xix) To the knowledge of such counsel, there
are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments
required to be described or referred to in the
Registration Statement or to be filed as exhibits
thereto other than those described or referred to
therein or filed as exhibits thereto as required.
(xx) The information set forth in the
Prospectuses under the caption "Certain United
States Tax Consequences to Non-United States
Holders," to the extent that such information
constitutes summaries of legal matters or
documents, or legal conclusions, is true and
correct in all material respects.
(xxi) Each of the Company and Old O'Sullivan
has all necessary corporate power and authority to
execute and deliver each of the Reorganization
Agreements to which it is a party and to perform
its obligations thereunder. Each of the
Reorganization Agreements to which the Company or
Old O'Sullivan is a party has been duly authorized,
executed and delivered by each of them (to the
extent each of them is a party thereto) and
constitutes a valid and binding obligation of each
of them (to the extent each of them is a party
thereto), enforceable in accordance with its terms
(except to the extent that enforceability thereof
is subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting
creditors' rights generally and (ii) general
principles of equity (including, without
limitation, standards of materiality, good faith,
fair dealing and reasonableness), whether such
principles are considered in a proceeding at law or
in equity).
(xxii) The Selling Stockholder has all
necessary corporate power and authority to execute
and deliver each of the Reorganization Agreements
to which it is a party and to perform its
obligations thereunder. Each of the Reorganization
Agreements to which the Selling Stockholder is a
party has been duly authorized, executed and
delivered by the Selling Stockholder and
constitutes a valid and binding obligation of the
Selling Stockholder, enforceable in accordance with
its terms (except to the extent that enforceability
thereof is subject to (i) appliable bankruptcy,
insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting
creditors' rights generally and (ii) general
principles of equity (including, without
limitation, standards of materiality, good faith,
fair dealing and reasonableness), whether such
principles are considered in a proceeding at law or
in equity).
(xxiii) The execution, delivery and
performance by the Company and Old O'Sullivan of
the Reorganization Agreements to which each of them
is a party and the consummation by the Company and
Old O'Sullivan of the transactions contemplated
therein (i) will not violate (A) any law or present
regulation of any governmental agency or authority
of the United States of America or the State of New
York or the DGCL or (B) any agreement binding upon
the Company or Old O'Sullivan or their respective
subsidiaries or properties or any court decree or
order binding upon the Company or Old O'Sullivan or
their respective subsidiaries (such opinion being
limited (x) to the Covered Decrees, Orders and
Agreements and (y) in that such counsel need not
express an opinion with respect to any violation
arising under or based upon any cross-default
provision insofar as such violation relates to a
default under an agreement not filed as an exhibit
to the Registration Statement or such violation
arises under or is based upon any covenant of a
financial or numerical nature or requires
mathematic computation), (ii) will not result in a
breach or violation of the terms or provisions of
the Certificate of Incorporation or By-laws of the
Company or Old O'Sullivan or their respective
subsidiaries, and (iii) will not result in or
require the creation or imposition of any security
interest or lien upon any of their properties
pursuant to the provisions of any agreement binding
upon the Company or Old O'Sullivan or their
respective subsidiaries or properties (such opinion
being limited to the Covered Decrees, Orders and
Agreements) (except for purposes of clauses (i) and
(iii), where such a violation or breach or
resulting security interest or lien would not have
a material adverse effect on the condition
(financial or otherwise), business, properties or
results of operations of the Company, Old
O'Sullivan and their respective subsidiaries, taken
as a whole).
(xxiv) The execution, delivery and
performance by the Selling Stockholder of the
Reorganization Agreements to which it is a party
and the consummation by the Selling Stockholder of
the transactions contemplated therein (i) will not
violate (A) any law or present regulation of any
governmental agency or authority of the United
States of America or the State of New York or the
DGCL or (B) any agreement binding upon the Selling
Stockholder or its properties or any court decree
or order binding upon the Selling Stockholder (such
opinion being limited (x) to (1) the Covered
Decrees, Orders and Agreements and (2) the
agreements, contracts and instruments to which the
Selling Stockholder or its subsidiaries are parties
or by which they are bound set forth on Annex C to
the opinion of such counsel) and (y) in that such
counsel need not express an opinion with respect to
any violation arising under or based upon any
cross-default provision insofar as such violation
relates to a default under an agreement not filed
as an exhibit to the Registration Statement or such
violation arises under or is based upon any
covenant of a financial or numerical nature or
requires arithmetic computation), (ii) will not
result in a breach or violation of the terms or
provisions of the Certificate of Incorporation or
By-laws of the Selling Stockholder, and (iii) will
not result in or require the creation or imposition
of any security interest or lien upon any of its
properties pursuant to the provisions of any
agreement binding upon the Selling Stockholder or
its properties (such opinion being limited to (1)
the Covered Decrees, Orders and Agreements and (2)
the agreements, contracts and instruments to which
the Selling Stockholder or its subsidiaries are
parties or by which they are bound set forth on
Annex C to the opinion of such counsel) (except,
for purposes of clauses (i) and (iii), where such a
violation or breach or resulting security interest
or lien would not affect in any material respect
the transactions contemplated by this Agreement or
the International Purchase Agreement or have a
material adverse effect on the condition (financial
or otherwise), business, properties or results of
operation of the Selling Stockholder and its
subsidiaries, taken as a whole).
In addition, such opinion will contain the
following statements: In the course of the preparation by the
Company and its counsel of the Registration Statement and
Prospectuses, such counsel attended conferences with certain
of the officers of the Company and the Selling Stockholder
and representatives of the independent public accountants for
the Company, the Underwriters and counsel to the
Underwriters, at which the Registration Statement and the
Prospectuses were discussed. In addition, between the date
of the effectiveness of the Registration Statement and the
time of delivery of this opinion, such counsel attended
additional conferences with certain of the officers of the
Company and the Selling Stockholder and representatives of
the independent public accountants for the Company, at which
the contents of the Registration Statement and Prospectuses
were discussed to a limited extent. Given the limitations
inherent in the independent verification of factual matters
and the character of determinations involved in the
registration process, such counsel is not passing upon and
does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and the Prospectuses (other than as
set forth in paragraphs (ix), (x) and (xx) above). Subject
to the foregoing and on the basis of the information such
counsel gained in the performance of the services referred to
above, including information obtained from officers and other
representatives of the Company and the Selling Stockholder,
no facts have come to such counsel's attention that cause
such counsel to believe that the Registration Statement, at
the time of the Registration Statement was declared effective
by the Commission, contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statement therein
not misleading. Also, subject to the foregoing, no facts
have come to such counsel's attention that cause such counsel
to believe that the Prospectuses, as of the date thereof, at
Closing Time or at any Date of Delivery, contained or
contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, except in each case
that such counsel need not express a view or belief with
respect to financial statements, notes or schedules thereto
or other financial and statistical information included in
the Registration Statement or Prospectuses.
In rendering the foregoing opinion, such counsel
shall be entitled to state that such counsel expresses no
opinion regarding the laws of any jurisdiction other than the
federal laws of the United States, the laws of the State of
New York and the DGCL. In addition, such counsel shall be
entitled to state that such counsel expresses no opinion
regarding the securities or "blue sky" laws of any state or
other non-federal jurisdiction in which the Securities are
offered or sold.
(2) The favorable opinion, dated as of Closing
Time, of Rowland H. Geddie, III, Vice President, General
Counsel and Secretary of the Company, in form and
substance reasonably satisfactory to the U.S.
Representatives, to the effect that:
(i) Each of the Subsidiaries of the Company
has been duly incorporated and is validly existing
as a corporation in good standing under the laws of
the jurisdiction of its incorporation.
(ii) Each of the Subsidiaries of the Company
has all the necessary corporate power and authority
to own, lease and operate its properties and to
conduct its business as described in the
Prospectuses.
(iii) Each of the Subsidiaries of the Company
is duly licensed or qualified to conduct business
as a foreign corporation and is in good standing in
each jurisdiction set forth on Annex A to the
opinion of such counsel.
(iv) All of the issued and outstanding
capital stock of each of the Subsidiaries of the
Company has been validly issued and is fully paid
and nonassessable and is, to the knowledge of such
counsel, owned by the Company, directly or
indirectly, free and clear of any security
interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(v) To the knowledge of such counsel, there
is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or
foreign, now pending or threatened against the
Company or any of its Subsidiaries, which (A) is
required to be disclosed in the Registration
Statement and the Prospectuses (other than as
disclosed therein) or (B) might reasonably be
expected to result in any material adverse change
in the condition, financial or otherwise, or in
the earnings, business affairs or business
prospects of the Company and its Subsidiaries
considered as one enterprise.
(vi) To the knowledge of such counsel, the
Company is not in violation of its Certificate or
By-laws, and no default by the Company or any of
its Subsidiaries exists in the due performance or
observance of any obligation, agreement, covenant
or condition contained in any Covered Decrees,
Orders, and Agreements, except for defaults that
would not have a material adverse effect on the
condition, financial or otherwise, or on the
earnings, business affairs or business prospects of
the Company and its Subsidiaries considered as one
enterprise.
(vii) The execution, delivery and performance
by the Company of this Agreement, the International
Purchase Agreement, the U.S. Pricing Agreement and
the International Pricing Agreement and the
consummation by the Company of the transactions
herein and therein contemplated (i) will not
violate (A) any law or present regulation of any
governmental agency or authority of the State of
Texas or Missouri or (B) any agreement or court
decree or order known to such counsel and binding
upon the Company or any of its Subsidiaries or
their respective properties (such opinion being
limited to the Covered Decrees, Orders, and
Agreements), and (ii) will not result in or require
the creation or imposition of any security interest
or lien upon any of their properties pursuant to
the provisions of any agreement known to such
counsel and binding upon the Company or any of its
Subsidiaries or their respective properties.
(viii) The execution, delivery and
performance by the Company and Old O'Sullivan of
the Reorganization Agreements to which each of them
is a party and the consummation by the Company and
Old O'Sullivan of the transactions contemplated
therein (i) will not violate (A) any law or present
regulation of any governmental agency or authority
of the State of Texas or Missouri or (B) any
agreement or court decree or order known to such
counsel and binding upon the Company or Old
O'Sullivan or their respective subsidiaries or
properties and (ii) will not result in or require
the creation or imposition of any security interest
or lien upon any of their properties pursuant to
the provisions of any agreement known to such
counsel and binding upon the Company or Old
O'Sullivan or their respective subsidiaries or
properties (such opinion being limited to the
Covered Decrees, Orders, and Agreements) (except in
each case where such a violation or breach or
resulting security interest or lien would not have
a material adverse effect on the condition
(financial or otherwise), business, properties or
results of operations of the Company, Old
O'Sullivan and their respective subsidiaries, taken
as a whole).
In rendering the foregoing opinion, such counsel shall
be entitled to state that he expresses no opinion regarding
the laws of any jurisdiction other than the federal laws of
the United States, the laws of the State of Texas and
(subject to the qualification set forth in the immediately
following sentence) the laws of the State of Missouri.
Insofar as the foregoing opinion relates to matters governed
by the laws of the State of Missouri, such counsel shall be
entitled to state that he has assumed, without investigation,
that the laws of the State of Missouri are in all respects
identical to the laws of the State of Texas.
(3) The favorable opinion, dated as of Closing Time, of
Frederick W. Padden, General Counsel of the Selling
Stockholder, in form and substance reasonably satisfactory to
the U.S. Representatives, to the effect that:
(i) The Selling Stockholder is the sole record
owner and, to the knowledge of such counsel, beneficial
owner of the Initial Securities; to the knowledge of
such counsel, the Selling Stockholder has valid and
marketable title to the Initial Securities, free and
clear of any claim, lien, security interest,
encumbrance, restriction on transfer or other defect in
title.
(ii) To the knowledge of such counsel, there are
no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be
described or referred to in the Registration Statement
or to be filed as exhibits thereto other than those
described or referred to therein or filed as exhibits
thereto as required.
(iii) The information set forth in the
Prospectuses under the captions "Management Company
Compensation and Benefits" and "Certain Transactions,"
to the extent that such information constitutes
summaries of legal matters, documents or proceedings,
fairly summarizes in all material respects such legal
matters, documents or proceedings.
(iv) The execution, delivery and performance by
the Selling Stockholder of this Agreement, the
International Purchase Agreement, the U.S. Pricing
Agreement and the International Pricing Agreement and
the consummation by the Selling Stockholder of the
transactions herein and therein contemplated (i) will
not violate (A) any law or present regulation of any
governmental agency or authority of the State of Texas
or (B) any agreement or court decree or order known to
such counsel and binding upon the Selling Stockholder
or its properties and (ii) will not result in or
require the creation or imposition of any security
interest or lien upon any of its properties pursuant to
the provisions of any agreement known to such counsel
and binding upon the Selling Stockholder or its
properties.
(v) The execution, delivery and performance by
the Selling Stockholder of the Reorganization
Agreements to which it is a party and the consummation
by the Selling Stockholder of the transactions
contemplated therein (i) will not violate (A) any law
or present regulation of any governmental agency or
authority of the State of Texas or (B) any agreement or
court decree or order known to such counsel and binding
upon the Selling Stockholder or its properties and (ii)
will not result in or require the creation or
imposition of any security interest or lien upon any of
its properties pursuant to the provisions of any
agreement known to such counsel and binding upon the
Selling Stockholder or its properties (except in each
case where such a violation or breach or resulting
security interest or lien would not have a material
adverse effect on the condition (financial or
otherwise), business, properties or results of
operation of the Selling Stockholder and its
subsidiaries, taken as a whole).
In rendering the foregoing opinion, such counsel shall
be entitled to state that he expresses no opinion regarding
the laws of any jurisdiction other than the federal laws of
the United States and the laws of the State of Texas.
(4) The favorable opinion, dated as of Closing Time, of
Baker & Botts, L.L.P., counsel for the Underwriters, with
respect to the matters set forth in clauses (i), (vi), (vii)
(solely as to preemptive rights arising by operation of law
or under the Certificate of Incorporation and By-laws of the
Company), (ix) (solely as to the matters addressed in the
first sentence thereof), (xi) (solely as to the due
authorization, execution and delivery of the U.S. Purchase
Agreement and the International Purchase Agreement), (xii)
(solely as to the due authorization, execution and delivery
of the U.S. Purchase Agreement and the International
Purchase Agreement), (xvii) and (xviii) of subsection (b)(1)
of this Section.
Such opinion of Baker & Botts, L.L.P. shall further
state that nothing has come to the attention of such counsel
that causes them to believe that the Registration Statement
(other than the financial statements and schedules contained
therein, including the notes thereto and the auditors'
reports thereon, and the other financial and statistical data
contained therein, as to which such counsel need not
comment), at the time it became effective, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus (other than the financial statements and schedules
contained therein, including the notes thereto and the
auditors' reports thereon, and the other financial and
statistical data contained therein, as to which such counsel
need not comment), at the Representation Date (unless the
term "Prospectus" refers to a prospectus which has been
provided to the Underwriters by the Company for use in
connection with the offering of the Offered Securities which
differs from the prospectus on file at the Commission at the
Representation Date, in which case at the time it is first
provided to the Underwriters for such use), included an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(c) At Closing Time there shall not have been, since
the date hereof or since the respective dates as of which
information is given in the Prospectuses, any materialadverse
change in the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business,
and the U.S. Representatives shall have received a
certificate of the President or a Vice President of the
Company and of the chief financial or chief accounting
officer of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse
change, (ii) the representations and warranties of the
Company contained in Section 1(a) of this Agreement are true
and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company
has complied with all covenants and agreements and satisfied
all conditions on its part to be performed or satisfied at or
prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued
and, to the knowledge of each such officer, no proceedings
for that purpose have been initiated or threatened by the
Commission. As used in this Section 5(c), the term
"Prospectuses" shall mean the Prospectuses in the form first
used to confirm sales of the Securities.
(d) At Closing Time the U.S. Representatives shall have
received a certificate from the President or a Vice President
of the Selling Stockholder and of the chief financial officer
or chief accounting officer of the Selling Stockholder, dated
as of Closing Time, to the effect that (i) the
representations and warranties of the Selling Stockholder
contained in Sections 1(a) and 1(b) of this Agreement are
true and correct with the same force and effect as though
expressly made at and as of Closing Time and (ii) the Selling
Stockholder has complied with all covenants and agreements
and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time.
(e) At the time of the execution of this Agreement, the
U.S. Representatives shall have received from Price
Waterhouse a letter dated such date, in form and substance
satisfactory to the U.S. Representatives, to the effect that:
(i) they are independent public accountants with
respect to the Company and its Subsidiaries within the
meaning of the 1933 Act and the 1933 Act Regulations;
(ii) it is their opinion that the audited combined
financial statements of the Company and its Subsidiaries
included in the Registration Statement and covered by
their reports therein comply as to form in all material
respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations with respect
to registration statements on Form S-1;
(iii) on the basis of procedures (but not an audit
in accordance with generally accepted auditing
standards) consisting of (A) reading the minutes of
meetings of the stockholders, the Board of Directors,
and of the Company and its Subsidiaries since the date
of the latest audited balance sheet as set forth in the
minute books through a specified date not more than five
business days prior to the date of this Agreement, (B)
performing the procedures specified by the American
Institute of Certified Public Accountants for a review
of interim financial information as described in SAS
No. 71, Interim Financial Information, on the unaudited
condensed interim financial statements of the Company
included in the Registration Statement and reading the
unaudited interim financial statements of the Company
for the period from December 31, 1993 to the date of
latest available interim financial statements, and (C)
making inquiries of certain officials of the Company who
have responsibility for financial and accounting matters
regarding the specific financial statement items
referred to below, nothing has come to their attention
that causes them to believe that (1) the unaudited
condensed combined financial statements of the Company
and its Subsidiaries included in the Registration
Statement do not comply as to form in all material
respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations or that any
material modifications should be made to the unaudited
condensed combined interim financial statements,
included in the Registration Statement, for them to be
in conformity with generally accepted accounting
principles, or (2) at a specified date not more than
five business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in the combined long-term debt of the Company
and its Subsidiaries as compared with the amounts shown
in the December 31, 1993 combined balance sheet included
in the Registration Statement or, during the period from
January 1, 1994 to a specified date not more than five
business days prior to the date of this Agreement, there
were any decreases, as compared with the corresponding
period in the preceding year, in the combined net sales,
the total or per share amounts of income before
cumulative effect of change in accounting principle, or
the net income of the Company and its Subsidiaries,
except in all instances for changes, increases or
decreases which the Registration Statement discloses
have occurred or may occur, or except as specifically
stated in such letter;
(iv) although they are unable to and do not
express an opinion on the Pro Forma Combined Statements
of Operations and Pro Forma Combined Balance Sheet
(collectively, the "Pro Forma Financial Statements")
included in the Registration Statement, they have (A)
read the Pro Forma Financial Statements, (B) made
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters
about the basis for their determination of the pro forma
adjustments to the historical amounts in the Pro Forma
Financial Statements and whether the Pro Forma Financial
Statements comply in form in all material respects with
the applicable accounting requirements of Rule 11-02 of
Regulation S-X; and (C) proved the arithmetic accuracy
of the application of the pro forma adjustments to the
historical amounts in the Pro Forma Statements; on the
basis of such procedures, and such other inquiries and
procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that
the Pro Forma Financial Statements do not comply in form
in all material respects with the applicable
requirements of Rule 11-02 of Regulation S-X and that
the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of such
statements; and
(v) they have read, with respect to certain
amounts, percentages and financial information which are
included in the Registration Statement and Prospectuses
and which have been specified by the U.S.
Representatives, and have found such amounts,
percentages and financial information to be in agreement
with the relevant accounting and financial records of
the Company and its Subsidiaries identified in such
letter.
(f) At Closing Time the U.S. Representatives shall
have received from Price Waterhouse a letter, dated as of
Closing Time, to the effect that they confirm the statements
made in the letter furnished pursuant to subsection (e) of
this Section, except that the "specified date" referred to in
such letter shall be a date not more than five days prior to
Closing Time and, if the Company has elected to rely on Rule
430A of the 1933 Act Regulations, to the further effect that
they have carried out procedures as specified in clause (v)
of subsection (e) of this Section with respect to certain
amounts, percentages and financial information specified by
the U.S. Representatives and deemed to be a part of the
Registration Statement pursuant to Rule 430(A)(b) and have
found such amounts, percentages and financial information to
be in agreement with the relevant accounting and financial
records of the Company and its Subsidiaries identified in
such letter.
(g) At Closing Time the Securities shall have been
approved for listing on the New York Stock Exchange, subject
only to official notice of issuance.
(h) At the time of the execution of this Agreement, the
Company shall have furnished to the U.S. Representatives
"lock-up" letters (or other agreements or instruments
acceptable to the U.S. Representatives), in form and
substance reasonably satisfactory to the U.S.
Representatives, signed by each of the persons designated in
the Prospectuses as an executive officer or director of the
Company, pursuant to which each such person shall agree not
to sell, offer to sell, grant an option for the sale of, or
otherwise dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or
exchangeable into or exercisable for Common Stock for a
period of 180 days from the U.S. Representation Date without
the prior written consent of the U.S. Representatives (which
consent shall not be unreasonably withheld), except for a
bona fide transaction entered into in good faith by such
person with a member of such person's family or by the
executor of such person's estate, provided that the recipient
of such shares (unless such recipient is the executor or
administrator of the estate of a deceased transferor) agrees
in writing to be bound by the terms of the transferor's
lock-up letter.
(i) At Closing Time and at each Date of Delivery, if
any, counsel for the U.S. Underwriters shall have been
furnished with such certificates, documents and opinions as
they may reasonably require for the purpose of enabling them
to pass upon the sale or issuance of the Securities as herein
contemplated and related proceedings, or in order to evidence
the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained.
(j) At Closing Time and at each Date of Delivery, if
any, all actions, proceedings, instruments, opinions and
documents required in connection with the consummation of the
transactions contemplated by this Agreement and the
International Purchase Agreement at or prior to Closing Time
or such Date of Delivery, as the case may be, shall be
reasonably satisfactory to the U.S. Representatives.
(k) In the event the U.S. Underwriters exercise their
option provided in Section 2(b) hereof to purchase all or any
part of the U.S. Option Securities and the Date of Delivery
specified by the U.S. Underwriters for any such purchase is a
date other than the Closing Time, the obligation of the U.S.
Underwriters to purchase all or any such portion of the U.S.
Option Securities shall be subject, in addition to the
foregoing conditions, to the accuracy of the representations
and warranties of the Company and the Selling Stockholder
herein contained at each Date of Delivery, to the performance
by the Company and the Selling Stockholder of its obligations
hereunder required to be performed prior to or at each Date
of Delivery, and to the receipt by the U.S. Underwriters of
the following:
(1) A certificate, dated such Date of Delivery, of
the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the
Company confirming that the certificate delivered at
Closing Time pursuant to Section 5(c) hereof remains
true as of such Date of Delivery.
(2) A certificate, dated such Date of Delivery, of
the President or a Vice President of the Selling
Stockholder and of the chief financial or chief
accounting officer of the Selling Stockholder confirming
that the certificate delivered at Closing Time pursuant
to Section 5(d) hereof remains true as of such Date of
Delivery.
(3) The favorable opinion of Fried, Frank, Harris,
Shriver & Jacobson, counsel for the Company, in form and
substance reasonably satisfactory to the U.S.
Representatives, dated such Date of Delivery, relatingto
the Option Securities and otherwise to the same effect
as the opinion required by Section 5(b)(1) hereof.
(4) The favorable opinion of Frederick W. Padden,
General Counsel of the Selling Stockholder, in form and
substance reasonably satisfactory to the U.S.
Representatives, dated such Date of Delivery, relating
to the Option Securities and otherwise to the same
effect as the opinion required by Section 5(b)(2)
hereof.
(5) The favorable opinion of Rowland H. Geddie,
III, Vice President, General Counsel and Secretary of
the Company, in form and substance reasonably
satisfactory to the U.S. Representatives, dated such
Date of Delivery, relating to the Option Securities and
otherwise to the same effect as the opinion required by
Section 5(b)(3) hereof.
(6) The favorable opinion of Baker & Botts,
L.L.P., counsel for the U.S. Underwriters, dated such
Date of Delivery, relating to the Option Securities and
otherwise to the same effect as the opinion required by
Section 5(b)(4) hereof.
(7) A letter, dated as of such Date of Delivery,
from Price Waterhouse, in form and substance reasonably
satisfactory to the U.S. Representatives, substantially
the same in scope and substance as the letter furnished
pursuant to Section 5(f) hereof, except that the
"specified date" in such letter shall be a date not more
than five days prior to such Date of Delivery.
If any condition specified in this Section shall
not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the U.S. Representatives
by notice to the Company and the Selling Stockholder at any
time at or prior to Closing Time or (insofar as the
provisions hereof relate to the Option Securities) any Date
of Delivery and such termination shall be without liability
of any party to any other party. Notwithstanding the
foregoing, the provisions of Sections 4(a), 4(b), 6 and 7
hereof shall remain in effect following any such termination.
SECTION 6. Indemnification.
(a) The Company and the Selling Stockholder
jointly and severally agree to indemnify and hold harmless
each U.S. Underwriter, each officer and director of any U.S.
Underwriter and each person, if any, who controls any U.S.
Underwriter within the meaning of Section 15 of the 1993 Act
as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement
(or any amendment thereto), including the information
deemed to be part of the Registration Statement pursuant
to Rule 430A(b) of the 1933 Act Regulations, if
applicable, or the omission or alleged omission
therefrom of a material fact required to be stated
therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in
any preliminary prospectus or the Prospectuses (or any
amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to theextent
of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected
with the written consent of the Company and the Selling
Stockholder; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and expenses of counsel
chosen by the U.S. Representatives), reasonablyincurred
in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to the
extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon
and conformity with written information furnished to the
Company by any U.S. Underwriter through Merrill Lynch
expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the U.S.
Prospectus (or any amendment or supplement thereto); and
provided, further, that this indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit
of any U.S. Underwriter from whom the person asserting any
such losses, liabilities, claims, damages or expenses
purchased Securities, any officer or director of such U.S.
Underwriter or any person controlling such Underwriter, if a
copy of the U.S. Prospectus (as then amended or supplemented
if the Company shall have furnished any such amendments or
supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if such is required by law,
at or prior to the written confirmation of the sale of such
Securities to such person and if the U.S. Prospectus (as so
amended or supplemented) would have corrected the defect
giving rise to such loss, liability, claim, damage or
expense.
(b) Each U.S. Underwriter agrees, severally and
not jointly, to indemnify and hold harmless the Company, its
directors and each of its officers who signed the
Registration Statement, the Selling Stockholder and each of
its officers and directors and each person, if any, who
controls the Company or the Selling Stockholder within the
meaning of Section 15 of the 1933 Act against any and all
loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, but
only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including
the information deemed to be part of the Registration
Statement pursuant to Rule 430A(b) of the 1933 Act
Regulations, if applicable, or any preliminary prospectus or
the Prospectuses (or any amendment or supplement thereto) in
reliance upon and in conformity with written information
furnished to the Company by such U.S. Underwriter through
Merrill Lynch expressly for use in the Registration Statement
(or any amendment thereto) or the Prospectuses (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party
of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify
any indemnifying party shall not relieve such indemnifying
party from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party
may participate at its own expense in the defense of such
action. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any
one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations
or circumstances.
SECTION 7. Contribution. In order to provide for
just and equitable contribution in circumstances in which the
indemnity agreement provided for in Section 6 hereof is for
any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the
Company, the Selling Stockholder and the U.S. Underwriters
shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company, the Selling
Stockholder and one or more of the U.S. Underwriters, as
incurred, in such proportions that the U.S. Underwriters are
responsible for that portion represented by the percentage
that the underwriting discount appearing on the cover page of
the Prospectuses bears to the initial public offering price
appearing thereon and the Company and the Selling Stockholder
will be jointly and severally responsible for the balance;
provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls a
U.S. Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such U.S.
Underwriter, each director of the Company, each officer of
the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company, and each person who controls the
Selling Stockholder within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as
the Selling Stockholder.
SECTION 8. Representations, Warranties and
Agreements to Survive Delivery. All representations,
warranties, agreements and indemnities contained in this
Agreement and the U.S. Pricing Agreement, or contained in
certificates of officers of the Company or the Selling
Stockholder submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any investigation
made by or on behalf of any U.S. Underwriter or controlling
person, or by or on behalf of the Company or the Selling
Stockholder, and shall survive delivery of and payment for
the U.S. Securities to or by the U.S. Underwriters.
SECTION 9. Termination of Agreement.
(a) The U.S. Representatives may terminate this
Agreement, by notice to the Company and the Selling
Stockholder, at any time at or prior to Closing Time (i) if
there has been, since the date of this Agreement or since the
respective dates as of which information is given in the
Prospectuses, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its Subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred
any material adverse change in the financial markets in the
United States or elsewhere or any outbreak of hostilities or
escalation thereof or other calamity or crisis, the effect of
which is such as to make it, in the reasonable judgment of
the U.S. Representatives, impracticable to market the
Securities or enforce contracts for the sale of the
Securities, or (iii) if trading in the Common Stock has been
suspended by the Commission or the New York Stock Exchange,
or if trading generally on either the New York Stock Exchange
or the American Stock Exchange has been suspended, or minimum
or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by
either of said exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium has
been declared by either federal or New York authorities. As
used in this Section 9(a), the term "Prospectuses" means the
Prospectuses in the form first used to confirm sales of the
Securities.
(b) If this Agreement is terminated pursuant to
this Section, such termination shall be without liability of
any party to any other party. Notwithstanding the foregoing,
the provisions of Sections 4(a), 4(b), 6 and 7 shall remain
in effect.
(c) This Agreement may also terminate pursuant to
the provisions of Section 2(a)(ii) hereof, with the effect
stated in such Section.
SECTION 10. Default by one or more U.S.
Underwriters. If any one or more of the U.S. Underwriters
shall fail at Closing Time to purchase and pay for any of the
Initial U.S. Securities pursuant to this Agreement and the
U.S. Pricing Agreement and such failure to purchase shall
constitute a default in the performance of its or their
obligations hereunder and thereunder, the U.S.
Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-
defaulting U.S. Underwriters or any other underwriters to
purchase all, but not less than all, of the Initial U.S.
Securities not so purchased in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, the
U.S. Underwriters shall not have completed such arrangements
within said 24-hour period, then:
(a) if the number of Initial U.S. Securities not
so purchased does not exceed 10% of the Initial U.S.
Securities, the non-defaulting U.S. Underwriters shall be
obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting
obligations of all non- defaulting U.S. Underwriters, or
(b) if the number of Initial U.S. Securities not
so purchased equals or exceeds 10% of the Initial U.S.
Securities, this Agreement shall terminate without liability
on the part of any non-defaulting U.S. Underwriter.
No action taken pursuant to this Section shall
relieve any defaulting U.S. Underwriter from any liability it
may have hereunder in respect of its default.
In the event of any such default which does not
result in a termination of this Agreement, the U.S.
Representatives shall have the right to postpone Closing Time
for such period, not exceeding seven days, as they shall
determine, after consultation with the Company, in order that
the required changes in the Registration Statement and the
Prospectuses or in any other documents or arrangements may be
effected.
SECTION 11. Information Furnished by U.S.
Underwriters. The U.S. Underwriters acknowledge that the
statements contained in (i) the last paragraph of text on the
outside front cover page of the U.S. Prospectus, (ii) the
legend regarding stabilization activities on the inside front
cover page of the U.S. Prospectus and (iii) the fourth,
sixth, seventh, eighth, tenth and thirteenth paragraphs under
the caption "Underwriting" in the U.S. Prospectus were
included in the Registration Statement, the preliminary U.S
prospectus and the U.S. Prospectus in reliance upon and in
conformity with written information furnished to the Company
by the U.S. Underwriters through Merrill Lynch expressly for
use therein, and the Company and the Selling Stockholder
acknowledge and agree that such statements constitute the
only information so furnished to the Company by the U.S.
Underwriters.
SECTION 12. Notices. All notices and other
communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Representatives in
care of Merrill Lynch at World Financial Center, North Tower,
250 Vesey Street, New York, New York 10281, to the attention
of the Syndicate Department; notices to the Company shall be
directed to it at 1900 Gulf Street, Lamar, Missouri 64759, to
the attention of the General Counsel; and notices to the
Selling Stockholder shall be directed to it at TE Electronics
Technology Center, 200 Taylor Street, Suite 700, Fort Worth,
Texas 76102, to the attention of the General Counsel.
SECTION 13. Parties. This Agreement and the U.S.
Pricing Agreement shall each inure to the benefit of and be
binding upon the U.S. Underwriters, the Company and the
Selling Stockholder and their respective successors. Nothing
expressed or mentioned in this Agreement or the U.S. Pricing
Agreement is intended or shall be construed to give any
person, firm or corporation, other than the U.S.
Underwriters, the Company and the Selling Stockholder and
their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 hereof
and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or the U.S. Pricing Agreement or any provision
herein or therein contained. This Agreement and the U.S.
Pricing Agreement and all conditions and provisions hereof
and thereof are intended to be for the sole and exclusive
benefit of the U.S. Underwriters, the Company and the Selling
Stockholder and their respective successors, and said
controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of
Securities from any U.S. Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 14. Certain Actions; Authority of U.S.
Representatives. Any action required or permitted to be
taken by the U.S. Underwriters under or in connection with
this Agreement may be taken by them jointly or by Merrill
Lynch. The U.S. Representatives represent that they have
been authorized by the other U.S. Underwriters to execute
this Agreement and the U.S. Pricing Agreement on behalf of
the other U.S. Underwriters.
SECTION 15. Governing Law and Time. This
Agreement and the U.S. Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in
said state. Except where otherwise provided, specified times
of day refer to New York City time.
SECTION 16. Counterparts. This Agreement may be
executed in one or more counterparts and, when a counterpart
has been executed by each party, all such counterparts taken
together shall constitute one and the same agreement.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument along
with all counterparts will become a binding agreement among
the Company, the Selling Stockholder and each of the U.S.
Underwriters.
Very truly yours,
O'SULLIVAN INDUSTRIES
HOLDINGS, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
TE ELECTRONICS INC.
By:_______________________________
Name:_____________________________
Title:____________________________
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
WHEAT FIRST BUTCHER & SINGER
Wheat, First Securities, Inc.
THE CHICAGO DEARBORN COMPANY
RAUSCHER PIERCE REFSNES, INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By:/s/ M. David White
M. David White
Vice President
For themselves and as U.S. Representatives
of the several other U.S. Underwriters named
in Schedule A hereto.
SCHEDULE A
Number of Initial U.S.
Name of U.S. Underwriter Securities
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . 2,353,500
Wheat, First Securities, Inc . . . . . . . . 1,513,500
The Chicago Dearborn Company . . . . . . . . 1,513,500
Rauscher Pierce Refsnes, Inc . . . . . . . . 763,500
UBS Securities Inc . . . . . . . . . . . . . 190,000
A.G. Edwards & Sons, Inc. . . . . . . . . . 190,000
Morgan Stanley & Co. Incorporated . . . . . 190,000
CS First Boston Corporation . . . . . . . . 190,000
Bear, Stearns & Co. Inc. . . . . . . . . . 190,000
Alex. Brown & Sons Incorporated . . . . . . 190,000
Commerzbank Capital Markets Corporation . . 190,000
Credit Lyonnais Securities (USA) Inc. . . . 190,000
Dean Witter Reynolds Inc. . . . . . . . . . 190,000
Dillon, Read & Co. Inc. . . . . . . . . . . 190,000
Donaldson, Lufkin & Jenrette Securities
Corporation . . . . . . . . . . . . . . 190,000
Kidder, Peabody & Co. Incorporated . . . . . 190,000
PaineWebber Incorporated . . . . . . . . . . 190,000
Prudential Securities Incorporated . . . . . 190,000
Salomon Brothers Inc. . . . . . . . . . . . 190,000
Smith Barney Shearson Inc. . . . . . . . . 190,000
Wertheim Schroder & Co. Incorporated . . . . 190,000
Janney Montgomery Scott Inc. . . . . . . . 190,000
The Principal/Eppler, Guerin & Turner, Inc. 190,000
Robert W. Baird & Co. Incorporated . . . . . 110,000
William Blair & Company . . . . . . . . . . 110,000
J.C. Bradford & Co. . . . . . . . . . . . . 110,000
Dain Bosworth Incorporated . . . . . . . . . 110,000
First of Michigan Corporation . . . . . . . 110,000
Interstate/Johnson Lane Corporation . . . . 110,000
Edward D. Jones & Co. . . . . . . . . . . . 110,000
Kemper Securities, Inc. . . . . . . . . . . 110,000
C.J. Lawrence/Deutsche Bank Securities
Corporation . . . . . . . . . . . . . . 110,000
Legg Mason Wood Walker, Incorporated . . . . 110,000
McDonald & Company Securities, Inc. . . . . 110,000
Piper Jaffray Inc. . . . . . . . . . . . . . 110,000
Ragen MacKenzie. . . . . . . . . . . . . . . 110,000
Raymond James & Associates, Inc. . . . . . . 110,000
The Robinson-Humphrey Company, Inc. . . . . 110,000
Scott & Stringfellow, Inc. . . . . . . . . . 110,000
Tucker Anthony Incorporated . . . . . . . . 110,000
Gilford Securities Corporation . . . . . . . 30,000
George K. Baum & Company . . . . . . . . . . 30,000
Mesirow Financial, Inc. . . . . . . . . . . 30,000
Rothschild Inc. . . . . . . . . . . . . . . 30,000
Auerbach, Pollack & Richardson, Inc. . . . 20,000
_________
Total . . . . . . . . . . . . . . . . .. 11,764,000
EXHIBIT A
11,764,000 Shares
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
(a Delaware corporation)
Common Stock
(Par Value $1.00 Per Share)
U.S. PRICING AGREEMENT
January __, 1994
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
WHEAT FIRST BUTCHER & SINGER
Wheat, First Securities, Inc.
THE CHICAGO DEARBORN COMPANY
RAUSCHER PIERCE REFSNES, INC.
as U.S. Representatives of the several
U.S. Underwriters named in the within
mentioned U.S. Purchase Agreement
c/o MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
250 Vesey Street
New York, New York 10281
Dear Sirs:
Reference is made to the U.S. Purchase Agreement,
dated January __, 1994 (the "U.S. Purchase Agreement"), with
respect to (i) the sale by the Selling Stockholder and the
purchase by the several U.S. Underwriters named in Schedule A
thereto, acting severally and not jointly, of an aggregate of
11,764,000 shares (the "Initial U.S. Securities") of Common
Stock, par value $1.00 per share ("Common Stock"), of
O'Sullivan Industries Holdings, Inc. (the "Company"),
together with the Preferred Stock Purchase Rights of the
Company (the "Rights") associated with such shares, and (ii)
the grant by the Company to the U.S. Underwriters, acting
severally and not jointly, of the option to purchase all or
any part of the U.S. Underwriters' pro rata portion of up to
an additional 1,800,000 shares of Common Stock, together with
the Rights associated with such shares, to cover over-
allotments. Capitalized terms used herein and not otherwise
defined shall have the respective meanings assigned to them
in the U.S. Purchase Agreement.
Pursuant to Section 2(a) of the U.S. Purchase
Agreement, the Company and the Selling Stockholder agree with
each U.S. Underwriter as follows:
(a) The initial public offering price per share of
the U.S. Securities shall be $_______.
(b) The purchase price per share for the U.S.
Securities to be paid by the several U.S. Underwriters shall
be $______, being an amount equal to the initial public
offering price set forth above less $_______ per share.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument along
with all counterparts will become a binding agreement among
the Company, the Selling Stockholder and each of the U.S.
Underwriters.
Very truly yours,
O'SULLIVAN INDUSTRIES
HOLDINGS, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
TE ELECTRONICS, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
WHEAT FIRST BUTCHER & SINGER
Wheat, First Securities, Inc.
THE CHICAGO DEARBORN COMPANY
RAUSCHER PIERCE REFSNES, INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By:/s/ M. David White
M. David White
Vice President
For themselves and as U.S. Representatives
of the several other U.S. Underwriters named
in Schedule A to the U.S. Underwriting Agreement.