Exhibit 2d
_____________________________________________________________
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
3,000,000 Shares
Common Stock
INTERNATIONAL PURCHASE AGREEMENT
MERRILL LYNCH INTERNATIONAL LIMITED
UBS LIMITED
_____________________________________________________________
3,000,000 Shares
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
(a Delaware corporation)
Common Stock
(Par Value $1.00 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
January 26, 1994
MERRILL LYNCH INTERNATIONAL LIMITEDUBS LIMITED
as Lead Managers of the
several Managers
c/o Merrill Lynch International Limited
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY ENGLAND
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 "Managers,"
which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Merrill
Lynch International Limited ("MLI") and UBS Limited are
acting as representatives (in such capacity, MLI and UBS
Limited being hereinafter collectively referred to as the
"Lead Managers"), with respect to (i) the sale by the Selling
Stockholder and the purchase by the Managers, 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 Managers, acting severally and not
jointly, of the option described in Section 2(b) hereof 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, to
cover over-allotments, in each case except as may otherwise
be provided in the International Pricing Agreement (as
hereinafter defined). The 3,000,000 shares of Common Stock,
together with the Rights associated with such shares, to be
purchased by the Managers from the Selling Stockholder (the
"Initial International Securities") and all or any part of
the Managers' pro rata portion of 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
"International Option Securities") are hereinafter
collectively referred to as the "International Securities."
It is understood that the Company and the Selling
Stockholder are concurrently entering into a U.S. Purchase
Agreement of even date herewith (the "U.S. Purchase
Agreement") with respect to (i) the sale by the Selling
Stockholder of 11,764,000 shares of Common Stock, together
with the Rights associated with such shares (the "Initial
U.S. Securities"), through arrangements with certain
underwriters in the United States and Canada (the "U.S.
Underwriters"), 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 representatives (the "U.S.
Representatives"), and (ii) the grant by the Company to the
U.S. Underwriters of an 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 (the "U.S. Option
Securities"), to cover over-allotments, in each case except
as may otherwise be provided in the U.S. Pricing Agreement
(as hereinafter defined). The Initial U.S. Securities and
the U.S. Option Securities are hereinafter collectively
referred to as the "U.S. Securities." It is understood that
the Managers are not obligated to purchase, any Initial
International Securities unless all of the Initial U.S.
Securities are contemporaneously purchased by the U.S.
Underwriters.
The Managers and the U.S. Underwriters are hereinafter
collectively referred to as the "Underwriters." The Initial
International Securities and the Initial U.S. Securities are
hereinafter collectively referred to as the "Initial
Securities." The International Option Securities and the
U.S. Option Securities are hereinafter collectively referred
to as the "Option Securities." The International Securities
and the U.S. Securities are hereinafter collectively referred
to as the "Securities." Unless the context otherwise
requires, all references contained herein to the Initial
International Securities, the International Option
Securities, the International Securities, the Initial U.S.
Securities, the U.S. Option Securities, the U.S. 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 Lead Managers and the
U.S. Representatives.
Prior to the purchase and public offering of the
International Securities by the several Managers, the
Company, the Selling Stockholder and the Lead Managers,
acting on behalf of the several Managers, shall enter into an
agreement substantially in the form of Exhibit A hereto (the
"International Pricing Agreement"). The International
Pricing Agreement may take the form of an exchange of any
standard form of written telecommunication among the Company,
the Selling Stockholder and the Lead Managers and shall
specify such applicable information as is indicated in
Exhibit A hereto. The offering of the International
Securities will be governed by this Agreement, as
supplemented by the International Pricing Agreement. From
and after the date of the execution and delivery of the
International Pricing Agreement, this Agreement shall be
deemed to incorporate, and all references to "this Agreement"
or "herein" shall be deemed to include, the International
Pricing Agreement, unless the context requires otherwise.
The initial public offering price and the purchase price with
respect to the U.S. Securities shall be set forth in a
separate instrument (the "U.S. Pricing Agreement"), the form
of which is attached to the U.S. Purchase Agreement. The
price per share for the U.S. Securities to be purchased by
the U.S. Underwriters pursuant to the U.S. Purchase Agreement
shall be identical to the price per shares for the
International Securities to be purchased by the Managers
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 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 and 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. The international prospectus and U.S. 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 international prospectus and the U.S.
prospectus in the respective forms included in the
Registration Statement are hereinafter referred to as the
"International Prospectus" and the "U.S. Prospectus," except
that if any revised prospectuses shall be provided to the
Managers or the U.S. Underwriters 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 "International Prospectus" and "U.S. Prospectus"
shall refer to such revised prospectuses from and after the
time they are first provided to the Managers or the U.S.
Underwriters for such use. The International Prospectus and
the U.S. 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 Managers propose to make a public offering of the
International Securities as soon as the Lead Managers deem
advisable after the Registration Statement becomes effective
and the International 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 Managers
(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
International Pricing Agreement (such latter date being
hereinafter referred to as the "International Representation
Date") as follows:
(i) At the time the Registration Statement becomes
effective and at the International 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 International Representation Date
(unless the term "Prospectuses" refers to prospectuses
which have been provided to the Managers and the U.S.
Underwriters 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
Managers and the U.S. Underwriters 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 Manager
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 omitted 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 Reorganization Transactions" 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 U.S. Purchase Agreement and, when issued and
delivered by the Company in accordance with this
Agreement and the U.S. 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 U.S. 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 U.S. 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
International Representation Date, the International
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 U.S. Purchase
Agreement, the International Pricing Agreement and the
U.S. 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 U.S.
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 U.S. Purchase Agreement, the
International Pricing Agreement or the U.S. 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
U.S. 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 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 Managers as of the date hereof and as
of the International 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 U.S. 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 International Representation Date, the
International Pricing Agreement will be duly authorized,
executed and delivered by the Selling Stockholder.
(iii) The execution, delivery and performance of
this Agreement, the U.S. Purchase Agreement, the
International Pricing Agreement and the U.S. 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
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 U.S. Purchase Agreement, the
International Pricing Agreement or the U.S. 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 U.S.
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 Lead Managers or to counsel for the
Managers 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 Manager as to the matters covered thereby; and any
certificate signed by any officer of the Selling Stockholder
and delivered to the Lead Managers or to counsel for the
Managers 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 Manager as to the matters covered thereby.
SECTION 2. Sale and Delivery to Managers;
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 Manager, severally and not jointly, and each Manager,
severally and not jointly, agrees to purchase from the
Selling Stockholder, at the price per share set forth in the
International Pricing Agreement, the number of Initial
International Securities set forth in Schedule A opposite the
name of such Manager (except as otherwise provided in the
International Pricing Agreement), plus any additional number
of Initial International Securities which such Manager may
become obligated to purchase pursuant to the provisions of
Section 10 hereof, subject, in each case, to such adjustments
as the Lead Managers 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 Managers for
the International Securities have each been determined
and set forth in the International 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 Managers for the
International 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 Lead Managers. 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 Lead Managers.
The initial public offering price per share and the
purchase price, when so determined, shall be set forth
in the International Pricing Agreement. In the event
that such prices have not been agreed upon and the
International 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 Lead Managers.
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 International Pricing Agreement and the U.S. Pricing
Agreement, of which 360,000 shares and associated Rights
shall be the pro rata portion for the Managers and 1,440,000
shares and associated Rights shall be the pro rata portion
for the U.S. Underwriters. 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 International 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 Lead Managers and the U.S.
Representatives 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 International Option
Securities (a "Date of Delivery") shall be determined by the
Lead Managers 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 Lead Managers and the Company.
If the option is exercised as to all or any portion of the
International Option Securities, each of the Managers, acting
severally and not jointly, will purchase from the Company
that proportion of the number of International Option
Securities then being purchased which the number of Initial
International Securities set forth in Schedule A opposite the
name of such Manager (plus any additional number of Initial
International Securities which such Manager may become
obligated to purchase pursuant to the provisions of Section
10 hereof) bears to the total number of Initial International
Securities (except as otherwise provided in the International
Pricing Agreement), subject, in each case, to such
adjustments as the Lead Managers 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 U.S. 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 into 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 and Tax Agreement will be substantially in the
respective forms filed as exhibits to the Registration
Statement. The Stock Exchange Agreement, Asset Transfer
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 International Securities
to be purchased by the Managers 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
Lead Managers, 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
International Pricing Agreement or such other time not later
than ten business days after such date as shall be agreed
upon by the Lead Managers, 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 International Option
Securities are purchased by the Managers, payment of the
purchase price for, and delivery of certificates for, such
International 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 Lead
Managers and the Company, on each Date of Delivery as
specified in the notice from the Lead Managers to the
Company. Payment shall be made to the Selling Stockholder,
with respect to the Initial International Securities, and to
the Company, with respect to any International 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 Lead
Managers for the respective accounts of the Managers of
certificates for the International Securities to be purchased
by them. Certificates evidencing the Initial International
Securities and the International Option Securities, if any,
shall be in such denominations and registered in such names
as the Lead Managers 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 Manager has
authorized the Lead Managers, for its account, to accept
delivery of, receipt for, and make payment of the purchase
price for, the International Securities which it has agreed
to purchase. The Lead Managers, individually and not as
representatives of the Managers, may (but shall not be
obligated to) make payment of the purchase price for the
International Securities to be purchased by any Manager 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 Manager from its obligations hereunder. The
certificates evidencing the Initial International Securities
and the International Option Securities to be purchased by
the Managers will be made available in New York City for
examination and packaging by the Lead Managers 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 Managers as follows:
(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 Lead Managers
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
Managers or the U.S. Underwriters 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 Lead Managers 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 Managers or the U.S. Underwriters 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
Lead Managers 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 Lead Managers 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
Lead Managers 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 Lead Managers as many conformed copies of
the Registration Statement as originally filed and of each
amendment thereto (without exhibits) as the Lead Managers may
reasonably request for delivery to each of the Managers.
(e) The Company will furnish to each Manager, from time
to time during the period when the International Prospectus
is required to be delivered under the 1933 Act or the 1934
Act, such number of copies of the International Prospectus
(as amended or supplemented) as such Manager 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 Lead Managers based on the advice of their
counsel, to amend or supplement the International Prospectus
in order to ensure that the International 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 International Prospectus (and will provide drafts thereof
to the Managers and provide them a reasonable opportunity to
review such drafts and provide comments with respect thereto)
so that, as so amended or supplemented, the International
Prospectus will not contain such an untrue statement or
omission, and the Company will furnish to the Managers a
reasonable number of copies of any such amendment or
supplement to the International Prospectus.
(g) The Company will endeavor, in cooperation with the
Managers, to qualify the Securities for offering and sale
under the applicable securities laws of such other
jurisdictions as the Lead Managers 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 Managers 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 International Pricing
Agreement, (iii) the preparation, sale or issuance and
delivery of the certificates evidencing the International
Securities to the Managers, (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 securities laws in accordance with the
provisions of Section 3(g) hereof, including filing fees and
the fees and disbursements of counsel for the Managers in
connection therewith and in connection with the preparation
of the Blue Sky Survey, (vi) the printing and delivery to the
Managers 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 Managers of
copies of the Blue Sky Survey, (viii) the fees and expenses
incurred in connection with any filings required to be made
by the Managers with the National Association of Securities
Dealers, Inc. in connection with the offering and sale of the
Securities and (ix) 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 Lead
Managers 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 Managers for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of
counsel for the Managers.
(c) During the period of 180 days from the date of the
International Pricing Agreement, the Company and the Selling
Stockholder will not, without the prior written consent of
the Lead Managers (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 U.S. Purchase 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 U.S.
Purchase 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 Managers.
The obligations of the several Managers 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 Lead
Managers; 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
Managers, 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 Lead Managers 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 Lead Managers 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 Lead
Managers, 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 Prospectuses.
(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
U.S. Purchase Agreement and, when issued and
deliverd by the Company in accordance with this
Agreement and the U.S. 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 U.S. 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 U.S. Purchase Agreement, the
International Pricing Agreement and the U.S.
Pricing Agreement and to perform its obligations
hereunder and thereunder; this Agreement, the U.S.
Purchase Agreement, the International Pricing
Agreement and the U.S. 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 hereafterin
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 U.S.
Purchase Agreement, the International Pricing
Agreement and the U.S. Pricing Agreement and to
perform its obligations hereunder and thereunder;
this Agreement, the U.S. Purchase Agreement, the
International Pricing Agreement and the U.S.
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 extentthat
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
U.S. Purchase Agreement, the International Pricing
Agreement and the U.S. 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 itsproperties
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
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 U.S. 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
U.S. Purchase Agreement, the International Pricing
Agreement or the U.S. 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 U.S. Purchase Agreement, the
International Pricing Agreement or the U.S. 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 performits
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) 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).
(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 hereto) (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 U.S. 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 Lead
Managers, 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 U.S. Purchase
Agreement, the International Pricing Agreement and
the U.S. 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 Lead Manager, 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
U.S. Purchase Agreement, the International Pricing
Agreement and the U.S. 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 International Purchase
Agreement and the U.S. Purchase Agreement), (xii)
(solely as to the due authorization, execution and
delivery of the International Purchase Agreement and the
U.S. 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 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,
and the Lead Managers 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 Lead Managers 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
Lead Managers shall have received from Price Waterhouse a
letter dated such date, in form and substance satisfactory to
the Lead Managers, 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 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 Financial
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 Lead Managers, 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 Lead Managers 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 Lead Managers 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 Lead Managers "lock-up"
letters (or other agreements or instruments acceptable to the
Lead Managers), in form and substance reasonably satisfactory
to the Lead Managers, 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 International Representation Date
without the prior written consent of the Lead Managers (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 the 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 Managers 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 U.S.
Purchase Agreement at or prior to Closing Time or such Date
of Delivery, as the case may be, shall be reasonably
satisfactory to the Lead Managers.
(k) In the event the Managers exercise their option
provided in Section 2(b) hereof to purchase all or any part
of the International Option Securities and the Date of
Delivery specified by the Managers for any such purchase is a
date other than the Closing Time, the obligation of the
Managers to purchase all or any such portion of the
International 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 Managers 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 Lead Managers,
dated such Date of Delivery, relating to 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 Lead Managers,
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 Lead Managers, 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 Managers, 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 Lead Managers, 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 Lead Managers 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 Manager,
each officer and director of any Manager and each person, if
any, who controls any Manager within the meaning of Section
15 of the 1933 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 the
extent 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 Lead Managers), reasonably incurred 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 Manager through Merrill Lynch expressly for
use in the Registration Statement (or any amendment thereto)
or any preliminary prospectus or the International 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
Manager from whom the person asserting any such losses,
liabilities, claims, damages or expenses purchased
Securities, any officer or director of such Manager or any
person controlling such Manager, if a copy of the
International 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 Manager 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 International Prospectus
(as so amended or supplemented) would have corrected the
defect giving rise to such loss, liability, claim, damage or
expense.
(b) Each Manager 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
Manager 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 Managers 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 Managers, as incurred, in
such proportions that the Managers 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 found 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 Manager
within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as such Manager, and 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 International 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 Manager or controlling person, or
by or on behalf of the Company or the Selling Stockholder,
and shall survive delivery of and payment for the
International Securities to or by the Managers.
SECTION 9. Termination of Agreement.
(a) The Lead Managers 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 Lead
Managers, 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 Managers. If any
one or more of the Managers shall fail at Closing Time to
purchase and pay for any of the Initial International
Securities pursuant to this Agreement and the International
Pricing Agreement and such failure to purchase shall
constitute a default in the performance of its or their
obligations hereunder and thereunder, the Lead Managers shall
have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Managers
or any other underwriters to purchase all, but not less than
all, of the Initial International Securities not so purchased
in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Managers shall not have
completed such arrangements within said 24-hour period, then:
(a) if the number of Initial International Securities
not so purchased does not exceed 10% of the Initial
International Securities, the non-defaulting Managers 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 Managers, or
(b) if the number of Initial International Securities
not so purchased equals or exceeds 10% of the Initial
International Securities, this Agreement shall terminate
without liability on the part of any non-defaulting Manager.
No action taken pursuant to this Section shall relieve
any defaulting Manager 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 Lead Managers 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 Managers. The
Managers acknowledge that the statements contained in (i) the
last paragraph of text on the outside front cover page of the
International Prospectus, (ii) the legend regarding
stabilization activities on the inside front cover page of
the International Prospectus and (iii) the fourth, sixth,
seventh, eighth, tenth and thirteenth paragraphs under the
caption "Underwriting" in the International Prospectus were
included in the Registration Statement, the preliminary
International prospectus and the international Prospectus in
reliance upon and in conformity with written information
furnished to the Company by the Managers 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 Managers.
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
Managers shall be directed to the Lead Managers c/o Merrill
Lynch International Limited, Ropemaker Place, 25 Ropemaker
Street, London EC2Y 9LY, England, 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
International Pricing Agreement shall each inure to the
benefit of and be binding upon the Managers, the Company and
the Selling Stockholder and their respective successors.
Nothing expressed or mentioned in this Agreement or the
International Pricing Agreement is intended or shall be
construed to give any person, firm or corporation, other than
the Managers, 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 International Pricing Agreement or any
provision herein or therein contained. This Agreement and
the International Pricing Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole
and exclusive benefit of the Managers, 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 Manager shall be deemed to be a successor
by reason merely of such purchase.
SECTION 14. Certain Actions; Authority of Managers.
Any action required or permitted to be taken by the Managers
under or in connection with this Agreement may be taken by
them jointly or by Merrill Lynch. The Lead Managers
represent that they have been authorized by the other
Managers to execute this Agreement and the International
Pricing Agreement on behalf of the other Managers.
SECTION 15. Governing Law and Time. This Agreement and
the International 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 between
the Company and each of the Managers in accordance with its
terms.
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 INTERNATIONAL LIMITED
UBS LIMITED
By: MERRILL LYNCH INTERNATIONAL LIMITED
By:________________________________
Name:______________________________
Title:_____________________________
For themselves and as Lead Managers of the
several other Managers named in Schedule A hereto.
SCHEDULE A
Number of Initial International
Name of Manager Securities
Merrill Lynch International Limited . . 1,075,000
UBS Limited . . . . . . . . . . . . . . 1,075,000
Wheat First Butcher & Singer. . . . . . 150,000
The Chicago Dearborn Company. . . . . . 150,000
Rauscher Pierce Refsnes, Inc. . . . . . 150,000
Barclays de Zoete Wedd Limited . . . . 80,000
Cazenove & Co. . . . . . . . . . . . . 80,000
Commerzbank Aktiengesellschaft . . . . 80,000
Credit Lyonnais Securities . . . . . . 80,000
Nomura International plc . . . . . . . 80,000
__________
Total . . . . . . . . . . . . . . 3,000,000
__________
__________
EXHIBIT A
3,000,000 Shares
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
(a Delaware corporation)
Common Stock
(Par Value $1.00 Per Share)
INTERNATIONAL PRICING AGREEMENT
January __, 1994
MERRILL LYNCH INTERNATIONAL LIMITEDUBS LIMITED
as Lead Managers of the several
Managers named in the within-
mentioned International Purchase Agreement
c/o MERRILL LYNCH INTERNATIONAL LIMITED
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY England
Dear Sirs:
Reference is made to the International Purchase
Agreement, dated January __, 1994 (the "International
Purchase Agreement"), with respect to (i) the sale by the
Selling Stockholder and the purchase by the several Managers
named in Schedule A thereto, acting severally and not
jointly, of an aggregate of 3,000,000 shares (the "Initial
International 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 Managers, acting severally and not jointly, of
the 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, to cover over-allotments. Capitalized terms used
herein and not otherwise defined shall have the respective
meanings assigned to them in the International Purchase
Agreement.
Pursuant to Section 2(a) of the International Purchase
Agreement, the Company and the Selling Stockholder agree with
each Manager as follows:
(i) The initial public offering price per share of the
International Securities shall be $_______.
(ii) The purchase price per share for the International
Securities to be paid by the several Managers 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
Managers.
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 INTERNATIONAL LIMITED
UBS LIMITED
By: MERRILL LYNCH INTERNATIONAL LIMITED
By:___________________________
Name:_________________________
Title:________________________
For themselves and as Lead Managers of the
several other Managers named in Schedule A
to the International Purchase Agreement.