Exhibit 1.1
14,000,000 Shares
Dal-Tile International Inc.
COMMON STOCK, par value $0.01 per share
UNDERWRITING AGREEMENT
May [ ], 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
UBS WARBURG LLC
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010-3629
Ladies and Gentlemen:
1. Introductory. The stockholders listed in Schedule A hereto (the
"Selling Stockholders") propose severally to sell an aggregate of 14,000,000
outstanding shares (the "Firm Securities") of the Common Stock, par value $0.01
per share (the "Securities"), of Dal-Tile International Inc., a Delaware
corporation (the "Company"), and also propose to sell to the Underwriters, at
the option of the Underwriters, an aggregate of not more than 2,100,000
additional outstanding shares (the "Optional Securities") of the Company's
Securities as set forth below. The Firm Securities and the Optional Securities
are herein collectively called the "Offered Securities". The Selling
Stockholders hereby agree with the Company and with the several Underwriters
named in Schedule B hereto (the "Underwriters") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-59190) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission (the "Commission") and either (A) has
been declared effective under the Securities Act of 1933 (the "Act") and
is not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration statement (the
"initial registration statement") has been declared effective, either (A)
an additional registration statement (the "additional registration
statement") relating to the Offered Securities may have been filed with
the Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and,
if so filed, has become effective upon filing pursuant to such Rule and
the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement or (B) such an additional registration
statement is proposed to be filed with the Commission pursuant to Rule
462(b) and will become effective upon filing pursuant to such Rule and
upon such filing the Offered Securities will all have been duly registered
under the Act pursuant to the initial registration statement and such
additional registration statement. If the Company does not propose to
amend the initial registration statement or if an additional registration
statement has
been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("Rule 462(c)") under the
Act or, in the case of the additional registration statement, Rule 462(b).
For purposes of this Agreement, "Effective Time" with respect to the
initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means
(A) if the Company has advised the Representatives that it does not
propose to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if the Company has
advised the Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and time
as of which such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been filed
prior to the execution and delivery of this Agreement but the Company has
advised the Representatives that it proposes to file one, "Effective Time"
with respect to such additional registration statement means the date and
time as of which such registration statement is filed and become effective
pursuant to Rule 462(b). "Effective Date" with respect to the initial
registration statement or the additional registration statement (if any)
means the date of the Effective Time thereof. The initial registration
statement, as amended at its Effective Time, including all material
incorporated by reference therein and all information contained in the
additional registration statement (if any) and deemed to be a part of the
initial registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form on
which it is filed and including all information (if any) deemed to be a
part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is hereinafter
referred to as the "Initial Registration Statement". The additional
registration statement, as amended at its Effective Time, including the
contents of the initial registration statement incorporated by reference
therein and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to
Rule 430A(b), is hereinafter referred to as the "Additional Registration
Statement". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"Registration Statements" and individually as a "Registration Statement".
The form of prospectus relating to the Offered Securities, as first filed
with the Commission pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Act or (if no such filing is required) as included in a
Registration Statement, including all material incorporated by reference
in such prospectus, is hereinafter referred to as the "Prospectus". No
document has been or will be prepared or distributed in reliance on Rule
434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Act and the rules and regulations of the Commission (the "Rules and
Regulations") and did not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all respects to the
requirements of the Act and the Rules and Regulations and did not include,
or will not include, any untrue statement of a material fact and did not
omit, or will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
(C) on the date of this Agreement, the Initial Registration Statement and,
if the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
Prospectus is included, each Regis-
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tration Statement and the Prospectus will conform, in all respects to the
requirements of the Act and the Rules and Regulations, and neither of such
documents includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
If the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective Date of
the Initial Registration Statement, the Initial Registration Statement and
the Prospectus will conform in all respects to the requirements of the Act
and the Rules and Regulations, neither of such documents will include any
untrue statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and no Additional Registration Statement has been
or will be filed. The two preceding sentences do not apply to statements
in or omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Company by or on behalf of any
Underwriter through the Representatives expressly for use therein, it
being understood and agreed that the only such information is that
described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have,
individually or in the aggregate, a Material Adverse Effect (as defined
below).
(iv) Each "significant" subsidiary (as that term is used in Rule
1.02(w) of Regulation S-X under the Act) of the Company (each, a "Material
Subsidiary") has been duly incorporated and is an existing corporation or
limited liability company, as the case may be, in good standing under the
laws of the jurisdiction of its incorporation, with corporate power and
authority to own its properties and conduct its business as described in
the Prospectus, except to the extent that the failure to be so qualified
or be in good standing would not have, individually or in the aggregate, a
Material Adverse Effect; and each Material Subsidiary is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not, individually
or in the aggregate, have a Material Adverse Effect; all of the issued and
outstanding capital stock of each Material Subsidiary has been duly
authorized and validly issued and is fully paid and nonassessable; and
except as disclosed in the Prospectus, the capital stock of each Material
Subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly issued,
are fully paid and nonassessable and conform as to legal matters to the
description thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the offering
contemplated by this Agreement.
(vi) There are no contracts, agreements or understandings between
the Company and any person that would give rise to a valid claim against
the Company or any Underwriter for a brokerage commission, finder's fee or
other like payment.
(vii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include
such securities in the securities regis-
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tered pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(viii) The Offered Securities are listed on The New York Stock
Exchange.
(ix) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the Offered
Securities, except such as (A) have been obtained and made under the Act,
(B) may be required under state securities laws and (C) may be required by
the National Association of Securities Dealers, Inc. (the "NASD").
(x) The execution, delivery and performance of this Agreement and
the consummation of the transactions herein contemplated will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, (A) any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company or
any of their properties, (B) any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the Company
or any such subsidiary is subject, or (C) the charter or by-laws of the
Company or any Material Subsidiary except for, in the case of clause (A)
or (B), any such breach, violation or default that would not, individually
or in the aggregate, have a Material Adverse Effect.
(xi) This Agreement has been duly authorized, executed and delivered
by the Company.
(xii) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
personal properties owned by them, in each case free from liens,
encumbrances and defects, except as would not materially affect the
Company and its subsidiaries taken as a whole, or materially interfere
with the use made or to be made thereof by them, taken as a whole; and
except as disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable
leases, except as would not materially interfere with the use made or to
be made thereof by them, taken as a whole.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct their respective businesses and
have not received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect").
(xiv) No strike, labor dispute, slowdown, work stoppage or
disturbance with the employees of the Company or any subsidiary exists or,
to the knowledge of the Company, is imminent that might individually or in
the aggregate have a Material Adverse Effect.
(xv) The Company and/or its subsidiaries own, possess or have the
rights to use adequate trademarks, trade names, inventions, know-how,
patents, copyrights, confidential information and other intellectual
property (collectively, "intellectual property rights") necessary to
conduct the business as currently operated by them and have not received
any written notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect.
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(xvi) Except as disclosed in the Prospectus and as would not,
individually or in the aggregate, have a Material Adverse Effect: (A) each
of the Company and its subsidiaries is in compliance with and not subject
to liability under applicable Environmental Laws (as defined below); (B)
each of the Company and its subsidiaries has made all filings and provided
all notices required under any applicable Environmental Law, and has and
is in compliance with all Permits required under any applicable
Environmental Laws and each of them is in full force and effect; (C) there
is no civil, criminal or administrative action, suit, demand, claim,
hearing, notice of violation, investigation, proceeding, notice or demand
letter or request for information pending or, to the knowledge of the
Company and its subsidiaries, threatened against them under any
Environmental Law; (D) no lien, charge, encumbrance or restriction has
been recorded under any Environmental Law with respect to any assets,
facility or property owned, operated, leased or controlled by the Company
or any of its subsidiaries; (E) none of the Company or any of its
subsidiaries has received notice that it has been identified as a
potentially responsible party under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA"),
or any comparable Environmental Law; (F) no property or facility of the
Company or any of its subsidiaries is (1) listed or proposed for listing
on the National Priorities List under CERCLA or (2) listed in the
Comprehensive Environmental Response, Compensation, Liability Information
System List promulgated pursuant to CERCLA, or on any comparable list
maintained by any state or local governmental authority; (G) none of the
Company or any of its subsidiaries is subject to any order, decree or
agreement requiring, or is otherwise obligated or required to perform, any
response or corrective action relating to any Hazardous Materials (as
defined below) pursuant to any Environmental Law; and (H) there are no
past or present actions, events, operations or activities which could
reasonably be expected to prevent or interfere with compliance by the
Company and its subsidiaries with any applicable Environmental Law or to
result in liability under any applicable Environmental Law.
For purposes of this Agreement: (A) "Environmental Laws" means the common
law and all applicable laws or regulations, codes, orders, decrees,
judgments or injunctions issued, promulgated, approved or entered
thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases of
Hazardous Materials into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface
strata), (ii) the manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport or handling of Hazardous
Materials, and (iii) protection or restoration of natural resources such
as flora, fauna and wetlands; and (B) "Hazardous Materials" means any
pollutant, contaminant, waste, chemical, substance, material or
constituent subject to regulation or which can give rise to liability
under any Environmental Law.
(xvii) Except as disclosed in the Prospectus, there are no pending
or, to the knowledge of the Company, threatened actions, suits or
proceedings against or affecting the Company, any of its subsidiaries or
any of their respective properties that the Company believes have a
reasonable likelihood of being determined adversely to the Company or any
of its subsidiaries and, if so determined adversely to the Company or any
of its subsidiaries, would, individually or in the aggregate, have a
Material Adverse Effect, or would materially and adversely affect the
ability of the Company to perform its obligations under this Agreement, or
which are otherwise material in the context of the sale of the Offered
Securities; and, except as disclosed in the Prospectus, no such actions,
suits or proceedings are threatened or, to the Company's knowledge,
contemplated.
(xviii) Except as disclosed in the Prospectus, no subsidiary of the
Company is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such
subsidiary's capital stock, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring any of
such subsidiary's property or assets to the Company or another subsidiary
of the Company.
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(xix) Each of the Company and its subsidiaries has insurance in such
amounts and covering such risks and liabilities as are in accordance with
normal industry practice.
(xx) The statistical and market-related data included in each
Registration Statement and the Prospectus are based on or derived from
independent sources which the Company believes to be reliable and accurate
in all material respects or represent the Company's good faith estimates
that are made on the basis of data derived from such sources.
(xxi) The Company, with respect to itself and its subsidiaries, (A)
makes and keeps books and records that are accurate in all material
respects, and (B) maintains internal accounting controls that provide
reasonable assurances that transactions are executed in accordance with
management's authorization, transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets,
access to assets is permitted only in accordance with management's
authorization and the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxii) There are no contracts, agreements or other documents
required to be described in the Prospectus or to be filed as exhibits to
any Registration Statement by the Act or the Rules and Regulations which
have not been described or filed as required;
(xxiii) None of the Company nor any subsidiary of the Company has
incurred any liability for any prohibited transaction or funding
deficiency or any complete or partial withdrawal liability with respect to
any pension, profit sharing or other plan which is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), to which the
Company or any subsidiary of the Company makes or ever has made a
contribution and in which any employee of the Company or any such
subsidiary is or has ever been a participant, that would individually in
the aggregate have a Material Adverse Effect. With respect to such plans,
each of the Company and its subsidiaries is in compliance in all respects
with all applicable provisions of ERISA, except where the failure to so
comply would not individually or in the aggregate have a Material Adverse
Effect.
(xxiv) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a
consistent basis.
(xxv) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus (excluding
any amendments or supplements thereto subsequent to the date of this
Agreement) there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and, except as disclosed in
or contemplated by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(xxvi) The Company is not and, after giving effect to the offering
and sale of the Offered Securities, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(b) Each Selling Stockholder severally and not jointly represents and
warrants to, and agrees with, the several Underwriters that:
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(i) Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have good and marketable title to the Offered
Securities, free and clear of all liens, encumbrances, claims, security
interests, restrictions, stockholders agreements and voting trusts
whatsoever, to be delivered by such Selling Stockholder on such Closing
Date; and upon the delivery of and payment for the Offered Securities on
each Closing Date hereunder the several Underwriters will acquire good and
marketable title, free and clear of all liens, encumbrances, claims,
security interests, restrictions, stockholders agreements and voting
trusts whatsoever, to the Offered Securities to be delivered by such
Selling Stockholder on such Closing Date.
(ii) Such Selling Stockholder has full right, power and authority to
execute, deliver and perform its obligations under this Agreement, the
Power of Attorney and Custody Agreement, and to sell, transfer and deliver
the Offered Securities pursuant to this Agreement; and all authorizations
and consents, including, but not limited to, any releases necessary for
the execution and delivery by such Selling Stockholder of this Agreement,
the Power of Attorney and Custody Agreement and for the sale and delivery
of the Offered Securities to the Underwriters have been obtained and are
in full force and effect; and each of this Agreement, the Power of
Attorney and Custody Agreement constitutes a valid and binding agreement
of the Selling Stockholder enforceable against such Selling Stockholder in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws relating to
or affecting enforcement of creditors' rights generally or by general
principles of equity.
(iii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to state
any material fact required to be stated therein or necessary to make the
statement therein not misleading, and (C) on the date of this Agreement,
the Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and delivery
of this Agreement, the Additional Registration Statement, and at the time
of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing
is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each Registration Statement
and the Prospectus do not include, or will not include, any untrue
statement of a material fact or do not omit, or will not omit, to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration Statement,
the Initial Registration Statement and the Prospectus will not include any
untrue statement of a material fact or will not omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading. This paragraph applies only to the extent that any
statements in or omissions from a Registration Statement or the Prospectus
are based on written information furnished to the Company by such Selling
Stockholder specifically for use therein.
(iv) There are no contracts, agreements or understandings between
such Selling Stockholder and any person that would give rise to a valid
claim against the Company or any Underwriter for a brokerage commission,
finder's fee or other like payment.
(v) There is no action, suit or proceeding before or by any
government, governmental instrumentality or court, domestic or foreign,
now pending or, to the knowledge of such Selling Stockholder, threatened,
to which such Selling Stockholder is or would be a party or of which the
property of such Selling Stockholder is or may be subject, that (a) seeks
to restrain, enjoin, prevent the consumma-
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tion of or otherwise challenge the sale of the Offered Securities by such
Selling Stockholder or any of the other transactions contemplated hereby
or (b) questions the legality or validity of any such transactions or
seeks to recover damages or obtain other relief in connection with any
such transactions.
(vi) No filing, authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court (other than under the Act and the Rules and
Regulations and the securities or blue sky laws of the various states in
connection with the sale of the Offered Securities), domestic or foreign,
is required by reason of facts specifically pertaining to such Selling
Stockholder or its legal or regulatory status in connection with the due
authorization, execution and delivery by such Selling Stockholder of this
Agreement, the Power of Attorney and the Custody Agreement and the valid
sale and delivery of the Offered Securities to be sold by such Selling
Stockholder hereunder and thereunder.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to the Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from each Selling Stockholder, at
a purchase price of $[ ] per share, that number of Firm Securities (rounded up
or down, as determined by Credit Suisse First Boston Corporation ("CSFBC") in
its discretion, in order to avoid fractions) obtained by multiplying the number
of Firm Securities set forth opposite the name of such Selling Stockholder in
Schedule A hereto by a fraction, the numerator of which is the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule B hereto
and the denominator of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities have been
placed in custody, for delivery under this Agreement, under Custody Agreements
made with Mellon Investor Services LLC, as custodian (the "Custodian"). Each
Selling Stockholder agrees that the shares represented by the certificates held
in custody for the Selling Stockholders under such Custody Agreements are
subject to the interests of the Underwriters hereunder, that the arrangements
made by the Selling Stockholders for such custody are to that extent
irrevocable, and that the obligations of the Selling Stockholders hereunder
shall not be terminated by operation of law, whether by the death of any
individual Selling Stockholder or the occurrence of any other event, or in the
case of a trust, by the death of any trustee or trustees or the termination of
such trust. If any individual Selling Stockholder or any such trustee or
trustees should die, or if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities
hereunder, certificates for the Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such death or other event or termination had not occurred, regardless of whether
or not the Custodian shall have received notice of such death or other event or
termination.
In addition, upon written notice from CSFBC given to the Company and the
Selling Stockholders from time to time not more than 30 days subsequent to the
date of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Selling Stockholders agree, severally and not jointly, to
sell to the Underwriters the respective numbers of Optional Securities obtained
by multiplying the number of Optional Securities specified in such notice by a
fraction the numerator of which is the number of shares set forth opposite the
names of such Selling Stockholders in Schedule A hereto under the caption
"Number of Optional Securities To Be Sold" and the denominator of which is the
total number of Optional Securities (subject to adjustment by CSFBC to eliminate
fractions). Such Optional Securities shall be purchased from each Selling
Stockholder for the account of each Underwriter in the same proportion as the
number of Firm Securities set forth opposite such Underwriter's name bears to
the total number of Firm Securities (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may
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be exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Selling
Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Custodian will deliver
the Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price in Federal (same day) funds by official bank check or checks
or wire transfer to an account at a bank acceptable to CSFBC drawn to the order
of , at the office of . The certificates for the Optional
Securities being purchased on each Optional Closing Date will be in definitive
form, in such denominations and registered in such names as CSFBC requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging at the office of at a reasonable time in
advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. (a) The
Company agrees with the several Underwriters and the Selling Stockholders that:
(i) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement. The Company will advise CSFBC promptly of any such
filing pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and delivery,
the Company will file the additional registration statement or, if filed,
will file a post-effective amendment thereto with the Commission pursuant
to and in accordance with Rule 462(b) on or prior to 5:00 P.M., New York
time, on the date of this Agreement or, if earlier, on or prior to the
time the Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by
CSFBC.
(ii) The Company will advise CSFBC promptly of any proposal to amend
or supplement the initial or any additional registration statement as
filed or the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFBC's consent (not to
be unreasonably withheld); and the Company will also advise CSFBC promptly
of the effectiveness of each Registration Statement (if its Effective Time
is subsequent to the execution and delivery of this Agreement) and of any
amendment or supplementation of a Registration Statement or the Prospectus
and of the institution by the Commission of any stop order proceedings in
respect of a Registration Statement and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(iii) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of
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the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the
Company will promptly notify CSFBC of such event and will promptly prepare
and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither CSFBC's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(iv) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "Availability Date" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter.
(v) The Company will furnish to the Representatives copies of each
Registration Statement, five of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFBC requests. The Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day
following the later of the execution and delivery of this Agreement or the
Effective Time of the Initial Registration Statement. All other such
documents shall be so furnished as soon as available. The Selling
Stockholders will pay the expenses of printing and distributing to the
Underwriters all such documents.
(vi) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution.
(vii) For a period of 180 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act
relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
CSFBC, except issuances of Securities pursuant to the conversion or
exchange of convertible or exchangeable securities or the exercise of
warrants or options, in each case outstanding on the date hereof, grants
of employee stock options pursuant to the terms of a plan in effect on the
date hereof, issuances of Securities pursuant to the exercise of such
options or issuances of Securities pursuant to the Company's dividend
reinvestment plan.
(viii) The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including (A) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment
thereto, (B) the preparation, printing and delivery to the Underwriters of
this Agreement and such other documents as may be required in connection
with the offering, purchase, sale, issuance or delivery of the Offered
Securities, (C) the preparation, issuance and delivery of the certificates
for the Offered Securities to the Underwriters, (D) the fees and
disbursements of the Company's counsel, accountants and other advisors,
(E) the qualification of the Offered Securities under the laws of such
jurisdictions as CSFBC designates, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the blue
sky survey and any supplement
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thereto (such fees and expenses of counsel not to exceed $5,000), (F) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, any term sheets and of the Prospectuses and any amendments or
supplements thereto, (G) the preparation, printing and delivery to the
Underwriters of copies of the blue sky survey and any supplement thereto,
(H) the fees and expenses of any transfer agent or registrar for the
Offered Securities, (I) the filing fees incident to the review by the NASD
of the terms of the Offered Securities, (J) the fees and expenses incurred
in connection with the listing of the Offered Securities on The New York
Stock Exchange, (K) the fees and expenses of the custodian under the
Custody Agreement and Power of Attorney, and (L) any travel expenses of
the Company's officers and employees and any other expenses of the Company
in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities.
(b) Each Selling Stockholder agrees with the several Underwriters and the
Company that:
(i) Except as provided in clause (viii) in Section 5(a), such
Selling Stockholder will pay all expenses incident to the performance of
the obligations of such Selling Stockholder under, and the consummation of
the transactions contemplated by, this Agreement, including any fees and
disbursements of counsel to DTI Investors LLC, underwriting discounts and
commissions and any stamp duties, capital duties and stock transfer taxes,
if any, payable upon the sale of the Offered Securities to the
Underwriters.
(ii) Each Selling Stockholder agrees, for a period of 180 days after
the date of the initial public offering of the Offered Securities, not to
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any shares of the Securities of the Company or securities
convertible into or exchangeable or exercisable for any shares of
Securities, enter into any transaction which would have the same effect,
or enter into any swap, hedge or other arrangement that transfers, in
whole or in part, any of the economic consequences of ownership of the
Securities, whether any such aforementioned transaction is to be settled
by the delivery of the Securities or such other securities, in cash or
otherwise, or publicly disclose the intention to make any such offer,
sale, pledge or disposition, or to enter into any such transaction, swap,
hedge or other arrangement, without, in each case, the prior written
consent of CSFBC. In addition, such Selling Stockholder agrees that,
without the prior written consent of CSFBC, it will not, during the period
commencing on the date hereof and ending 180 days after the date of the
initial public offering of the Offered Securities, make any demand for, or
exercise any right with respect to, the registration of any shares of
Securities or any security convertible into or exercisable or exchangeable
for shares of Securities. Notwithstanding the foregoing, each Selling
Stockholder may transfer (A) any shares of Securities acquired by it in
the open market, (B) such Selling Stockholder's shares of Securities as a
bona fide gift to any person, trust or other entity and (C) such Selling
Stockholder's shares of Securities to any trust for the benefit of such
Selling Stockholder or members of the immediate family of such Selling
Stockholder, provided that such transfer shall not involve a disposition
for value; provided, however, that, in the case of each of clauses (B) and
(C), (x) such person, donee or trust, as the case may be, duly and validly
executes a written agreement agreeing to the terms of this paragraph prior
to such transfer and (y) such executed agreement is delivered to CSFBC,
attention: Transactions Advisory Group.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy on such date of the representations
and warranties on the part of the Company and the Selling Stockholders herein,
to the accuracy on such date of the statements of Company officers made pursuant
to the provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
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(a) The Representatives shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall be on
or prior to the date of this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to such
Effective Time), of Ernst & Young confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating that:
(i) in their opinion the financial statements and schedules examined
by them and included or incorporated by reference in the Registration
Statements comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No.
71, Interim Financial Information, on the unaudited financial statements
included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations or any material
modifications should be made to such unaudited financial statements
for them to be in conformity with generally accepted accounting
principles;
(B) the unaudited consolidated net sales, net operating
income, net income and earnings per share amounts for the
three-month periods ended March 31, 2000 and March 30, 2001 included
in the Prospectus do not agree with the amounts set forth in the
unaudited consolidated financial statements for those same periods
or were not determined on a basis substantially consistent with that
of the corresponding amounts in the audited statements of income;
(C) at a specified date not more than three business days
prior to the date of such letter, there was any change in the
capital stock or any increase in short-term indebtedness or
long-term debt of the Company and its consolidated subsidiaries or
any decrease in consolidated [net current assets or] net assets, as
compared with amounts shown on the latest balance sheet included in
the Prospectus; or
(D) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of the
previous year in consolidated net sales or net operating income in
the total or per share amounts of consolidated income before
extraordinary net income;
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except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived directly
from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise specified in
such letter.
For purposes of this subsection, (i) if the Effective Time of
the Initial Registration Statement is subsequent to the execution
and delivery of this Agreement, "Registration Statements" shall mean
the initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to
its Effective Time, (ii) if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration
Statement is subsequent to such execution and delivery,
"Registration Statements" shall mean the Initial Registration
Statement and the additional registration statement as proposed to
be filed or as proposed to be amended by the post-effective
amendment to be filed shortly prior to its Effective Time, and (iii)
"Prospectus" shall mean the prospectus included in the Registration
Statements. All financial statements and schedules included in
material incorporated by reference into the Prospectus shall be
deemed included in the Registration Statements for purposes of this
subsection.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 5:00 P.M., New York time, on the
date of this Agreement or such later time as shall have been consented to
by CSFBC. If the Effective Time of the Additional Registration Statement
(if any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later that 5:00 P.M., New York
time, on the date of this Agreement or, if earlier, the time the
Prospectus is printed and distributed to any Underwriter, or shall have
occurred at such later time as shall have been consented to by CSFBC. If
the Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have been
filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of any Selling Stockholder, the Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred (i) any change,
or any development or event involving a prospective change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as one enterprise
which, in the judgment of a majority in interest of the Underwriters
including the Representatives, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that
any such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material suspension or
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material limitation of trading in securities generally on the New York
Stock Exchange or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal or New York authorities; or (v) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including the Representatives,
the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion
of the public offering or the sale of and payment for the Offered
Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of Fried, Frank, Harris, Shriver & Jacobson, counsel for the
Company, covering the following matters and otherwise satisfactory to the
Representatives and their counsel:
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware, with corporate
power and authority to own its properties and conduct its business
as described in the Prospectus; and the Company is duly qualified to
do business as a foreign corporation in good standing in the
jurisdictions identified on a schedule to such opinion;
(ii) The Company's authorized capital stock is as set forth in
the Prospectus under the caption "Capitalization". The Offered
Securities delivered on such Closing Date have been duly authorized
and validly issued, are fully paid and nonassessable and the
description thereof contained in the Prospectus under the caption
"Description of Capital Stock," to the extent that such information
constitutes matters of law or summaries of legal matters or
documents, has been reviewed by such counsel and is correct in all
material respects; and the stockholders of the Company have no
preemptive rights with respect to the Securities;
(iii) No consent, approval, authorization or order of, or
filing with, any New York, Delaware (as it relates to the General
Corporation Law of the State of Delaware) or federal governmental
agency, body or court is required to be obtained or made by the
Company for the consummation of the transactions contemplated by
this Agreement in connection with the sale of the Offered
Securities, except such as (A) have been obtained and made under the
Act, (B) may be required under state securities laws and (C) may be
required by the NASD;
(iv) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
and the consummation of the transactions herein contemplated, do not
and will not (A) contravene any provision of the Restated
Certificate of Incorporation or Restated By-Laws of the Company or
(B) violate (1) any statute, rule or regulation of any governmental
agency or body or any authority of the United States of America or
the State of New York or of the State of Delaware pursuant to the
General Corporation Law of the State of Delaware applicable to the
Company or (2) any judgment, decree or order of any court or
governmental agency or body of the United States of America or the
State of New York or the State of Delaware pursuant to the General
Corporation Law of the State of Delaware set forth in the officers'
certificate to be attached to such opinion;
(v) To the knowledge of such counsel, other than as described
in the Registration Statement, no legal, regulatory or governmental
proceedings are pending to which the Company or any subsidiary of
the Company is a party or to which the property of the Company or
any subsidiary of the Company is subject, before or brought by any
New York, Delaware or federal court, governmental agency or body
which might reasonably be expected to result in a
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Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the consummation of the transactions
contemplated in this Agreement, and to the knowledge of such
counsel, no such proceedings have been threatened against the
Company or any subsidiary of the Company or with respect to any of
its respective assets or properties;
(vi) The statements in the Prospectus under the headings
"Description of Capital Stock" and "Shares Eligible for Future
Sale", insofar as such statements purport to summarize the Company's
authorized capital stock and agreements to which the Company is a
party, provide a fair summary of such agreements;
(vii) The Initial Registration Statement was declared
effective under the Act, the Additional Registration Statement (if
any) has been declared effective under the Act, any required filing
of the Prospectuses pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b), and, to
the best of the knowledge of such counsel, no stop order suspending
the effectiveness of a Registration Statement or any part thereof
has been issued and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission, and each
Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue dates
(other than the financial statements, the notes and schedules
thereto and the other financial information included therein or
omitted therefrom, as to which such counsel need express no
opinion), each appeared on its face to be responsive as to form in
all material respects to the requirements of the Act and the Rules
and Regulations; it being understood that such counsel need express
no opinion as to the financial statements, the notes and schedules
thereto or other financial information contained in the Registration
Statements or the Prospectus;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
obligation of the Company;
(ix) This Agreement has been duly authorized, executed and
delivered by or on behalf of each Selling Stockholder;
(x) The Power of Attorney and the Custody Agreement of each
Selling Stockholder constitute a valid and binding agreement of such
Selling Stockholder subject to limitations imposed by federal or
state securities laws or principles of public policy to enforcement
of rights to indemnification and contribution;
(xi) No consent, approval, authorization or order of or
qualification by the State of Delaware (as it relates to the General
Corporation Law of the State of Delaware), State of New York or any
federal governmental body or agency is required for the performance
by any Selling Stockholder of its obligations under the Underwriting
Agreement, the Power of Attorney and the Custody Agreement of such
Selling Stockholder, except such as have been obtained under the Act
or such as may be required by the securities or blue sky laws, in
connection with the purchase and distribution of the Offered
Securities by the Underwriters, provided that the foregoing opinion
is limited to such consents, approvals, authorizations, orders or
qualifications which in our experience are normally applicable to
public offerings of securities of the type contemplated by the
Underwriting Agreement excluding consents, approvals,
authorizations, orders or qualifications that are applicable to any
Selling Stockholder solely because of its specific status (including
regulatory status), other than its status as a selling stockholder;
and
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(xii) Upon (A) payment for the Offered Securities as provided
in the Underwriting Agreement, (B) registration of the transfer of
the Offered Securities to, and registration of the Offered
Securities in the name of, Cede & Co. or such other nominee as may
be designated by the Depository Trust Company ("DTC") and (C) the
crediting of the Offered Securities on the books of DTC to the
securities accounts (within the meaning of Section 8-501 of the
Uniform Commercial Code as currently in effect in the State of New
York (the "UCC")) of the various Underwriters (assuming that each of
the Underwriters lacks notice of any "adverse claim" (within the
meaning of Section 8-102 of the UCC) to the Offered Securities), (x)
the Underwriters will acquire valid "security entitlements" in
respect of the Offered Securities (within the meaning of Section
8-102 of the UCC) and (y) no action based on any "adverse claim"
(within the meaning of Section 8-102 of the UCC) to the Offered
Securities may be asserted against the Underwriters with respect to
such security entitlements.
In addition, such counsel shall state that in the course of
the preparation by the Company of the Registration Statement and the
Prospectus, such counsel participated in conferences with certain of
the officers and representatives of, and the independent public
accountants for the Company at which the contents of the
Registration Statement and the Prospectus were discussed. Between
the date of the effectiveness of the Registration Statement and the
time of delivery of such opinion, such counsel participated in
additional conferences with certain of the officers and
representatives of, and independent public accountants for, the
Company, at which the contents of the Prospectus were discussed to a
limited extent. Such counsel shall state that, given the limitations
inherent in the independent verification of factual matters and the
character of determinations involved in the registration process,
such counsel shall not pass upon or assume any responsibility for
the accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus, except as described
in clause (vi) above. Subject to the foregoing and on the basis of
the information gained in the performance of the services referred
to above, including information obtained from officers and other
representatives of, and the independent public accountants for, the
Company, such counsel shall state that no facts have come to their
attention that have caused them to believe that the Registration
Statement, as of its effective date, contained any untrue statement
of a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus, as of the date of
the opinion, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Also,
subject to the foregoing, such counsel shall state that no facts
have come to their attention in the course of the procedures
described in the second sentence of this paragraph that cause them
to believe that the Prospectus, as of the date and time of delivery
of such opinion, contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Such
counsel shall state that they express no view or belief, however,
with respect to financial statements, the notes or schedules thereto
or other financial information included in or incorporated by
reference into or omitted from the Registration Statement or the
Prospectus.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of Mark A. Solls, general counsel to the Company, covering
the following matters and otherwise satisfactory to the Representatives
and their counsel:
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware, with corporate
power and authority to own its properties and conduct its business
as described in the Prospectus; and the Company is duly qualified to
do
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business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification except to the
extent that the failure to be so qualified or to be in good standing
would not, individually or in the aggregate, have a material adverse
effect on the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken
as a whole;
(ii) All outstanding shares of the Common Stock of the Company
have been duly authorized and validly issued, are fully paid and
nonassessable, and conform in all material respects to the
description thereof contained in the Prospectus;
(iii) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
and the consummation of the transactions herein contemplated, do not
and will not, to the knowledge of such counsel, (A) contravene,
result in a breach of or constitute a default under any agreement or
instrument binding upon the Company (or any of its subsidiaries) or
to which it is a party or to which any of the properties of the
Company or any such subsidiary is subject (1) that is or was
required to be filed as an exhibit to the Registration Statement or
the Company's Annual Report on Form 10-K for the fiscal year ended
December 29, 2000 or (2) is or was required to be listed as an
exhibit to any document filed with the Commission subsequent to
December 29, 2000 and prior to the date of this opinion that is
incorporated or deemed to be incorporated in the Registration
Statement, or (B) violate (1) any statute, rule or regulation of the
State of Texas or (2) any judgment, decree or order of any court or
governmental agency of the State of Texas set forth in the officers'
certificate to be attached to such opinion;
(iv) To the knowledge of such counsel, other than as described
in the Registration Statement, no legal, regulatory or governmental
proceedings are pending to which the Company or any subsidiary of
the Company is a party or to which the property of the Company or
any subsidiary of the Company is subject, before or brought by any
Texas court, governmental agency or body which might reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement, or which are required
to be disclosed in the Registration Statement, and to the knowledge
of such counsel, no such proceedings have been threatened against
the Company or any subsidiary of the Company or with respect to any
of its respective assets or properties;
(v) There is no contract or other document of a character
required to be described in the Registration Statement, or to be
filed as an exhibit thereto, which is not described or filed as
required, and such counsel has no actual knowledge of any rights
granted to any person to require the Company to file a registration
statement with respect to the Common Stock, other than any such
rights which have been exercised in connection with this Offering or
which have been waived in writing; and
(vi) The statements in the Prospectus under the heading
"Business--Legal Proceedings", insofar as such statements purport to
summarize certain proceedings to which the Company and its
subsidiaries are a party, provide a fair summary of such
proceedings.
In addition, such counsel shall state that no facts have come
to his attention that have caused him to believe that the
Registration Statement, as of its effective date, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus as of the
date of the opinion contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein,
-17-
in the light of the circumstances under which they were made, not
misleading. Such counsel shall state that he expresses no view or
belief, however, with respect to financial statements, the notes or
schedules thereto or other financial information included in or
incorporated by reference into or omitted from the Registration
Statement or the Prospectus.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of Consultoria Juridica Mercantil, S.A. de C.V., Mexican
counsel to the Company, covering the following matters and otherwise
satisfactory to the Representatives and their counsel:
(i) Dal-Tile Mexico S.A. de C.V. is a corporation duly
organized under the laws of the jurisdiction of its incorporation,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and
(ii) Neither the execution, delivery or performance by the
Company of the underwriting agreement conflicts or will conflict
with or constitutes or will constitute a breach of, or a default
under, the certificate of incorporation, bylaws or similar
organizational document of Dal-Tile Mexico S.A. de C.V.
(g) The Representatives shall have received an opinion, dated such
Closing Date, of counsel for each Selling Stockholder listed on Schedule C
hereto, to the effect that:
(i) The Power of Attorney and the Custody Agreement of such
Selling Stockholder have been duly authorized, executed, and
delivered by or on behalf of such Selling Stockholder; and
(ii) The execution and delivery by or on behalf of such
Selling Stockholder of, and the performance by such Selling
Stockholder of its obligations under, the Underwriting Agreement,
the Power of Attorney and the Custody Agreement of such Selling
Stockholder will not contravene any provision of the laws of the
State of Delaware (as it relates to the General Corporation Law of
the State of Delaware), the State of New York, [the State of
[jurisdiction of incorporation, if other]], or the federal laws of
the United States [or the laws of [country of incorporation, if
other]] applicable to such Selling Stockholder, provided that the
foregoing opinion is limited to such laws which, in our experience,
are normally applicable to public offerings of securities of the
type contemplated by the Underwriting Agreement excluding laws that
are applicable to such Selling Stockholder solely because of its
specific status (including regulatory status), other than its status
as a selling stockholder.
(h) The Representatives shall have received from Cahill Gordon &
Reindel, counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Representatives may require, and the Selling Stockholders and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(i) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that: (A) the representations and warranties of the Company in this
Agreement are true and correct; (B) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; (C) no stop order
suspending the effectiveness of any Registration Statement has been issued
and no proceedings for that purpose have been instituted or are
con-
-18-
templated by the Commission; (D) the Additional Registration Statement (if
any) satisfying the requirements of subparagraphs (1) and (3) of Rule
462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any
underwriter; and, subsequent to the dates of the most recent financial
statements in the Prospectus, there has been no material adverse change,
nor any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole
except as set forth in or contemplated by the Prospectus or as described
in such certificate.
(j) The Representatives shall have received a letter, dated such
Closing Date, of Ernst & Young which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to such Closing
Date for the purposes of this subsection.
(k) Lock-up agreements each in form and substance satisfactory to
the Representatives shall be in full force and effect on the Closing Date
from DTI Investors LLC and from each other party to whom they have
distributed Securities and the persons listed on Schedule D hereto.
(l) The Company and the Selling Stockholders shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
(m) CSFBC shall have received on the Closing Date evidence
satisfactory to CSFBC that the Custodian has been instructed to deliver to
each Selling Stockholder a United States Treasury Department Form 1099 (or
other applicable form or statement specified by the United States Treasury
Department regulations in lieu thereof) on or before January 31 of the
year following the date of this Agreement.
(n) The Offered Securities being sold hereunder by the Company shall
have been duly admitted for listing, and evidence shall have been provided
that the Offered Securities are admitted and authorized for trading, on
The New York Stock Exchange.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use
-19-
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(c) below.
(b) Each Selling Stockholder will severally and not jointly indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that (i) no Selling Stockholder will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents other than in reliance upon and in conformity with
written information furnished to the Company by such Selling Stockholder
expressly for use therein or contained in a representation or warranty given by
such Selling Stockholder in this Agreement, and (ii) the liability of such
Selling Stockholder pursuant to this subsection (b) shall be limited to an
amount equal to the aggregate net proceeds (after deducting underwriting
discounts and commissions but before deducting any other expenses incident to
the consummation of the transactions contemplated by this Agreement) to such
Selling Stockholder from the sale of the Offered Securities by it.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company and each Selling
Stockholder in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: [ ].
(d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party,
-20-
effect any settlement of any pending or threatened action in respect of which
any indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section 7 is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Selling Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), (i) no Selling Stockholder shall be required
to contribute any amount in excess of the total net proceeds (after deducting
underwriting discounts and commissions but before deducting any other expenses
incident to the consummation of the transactions contemplated by this Agreement)
received by such Selling Stockholder from the sale of the Offered Securities by
it, and (ii) no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under this
Section shall be in addition to any liability which the Company and the Selling
Stockholders may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
Closing Date or any Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date,
CSFBC may make arrangements satisfactory to the Selling Stockholders for the
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no
-21-
such arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
number of shares of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFBC and the
Selling Stockholders for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Stockholders, except as provided in Section 9 (provided
that if such default occurs with respect to Optional Securities after the First
Closing Date, this Agreement will not terminate as to the Firm Securities or any
Optional Securities purchased prior to such termination). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Selling Stockholders shall remain
responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv) or (v) of Section 6(c), the Company will, reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, NY 10010-3629, Attention: Transactions Advisory Group, or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at Dal-Tile International Inc., 7834 Hawn Freeway, Dallas, TX 75217,
Attention: Mark A. Solls, or, if sent to the Selling Stockholders or any of
them, will be mailed, delivered or telegraphed and confirmed to Thomas P. Salice
and Vincent A. Mai, attorneys-in-fact, c/o AEA Investors Inc., 65 East 55th
Street, New York, New York 10022; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives and
successors and the officers and directors and controlling persons referred to in
Section 8, and no other person will have any right or obligation hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters. Thomas P. Salice or Vincent A.
Mai will act for the Selling Stockholders in connection with such transactions,
and any action under or in respect of this Agreement taken by Thomas P. Salice
or Vincent A. Mai will be binding upon all the Selling Stockholders.
-22-
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
[SIGNATURE PAGES FOLLOW]
-23-
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholders, the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
SELLING STOCKHOLDERS
_________________________________________________
Name:
Title: Attorney-In Fact acting on behalf of each
Selling Stockholder named on
Schedule A
DAL-TILE INTERNATIONAL INC.
By: _________________________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
UBS WARBURG LLC
Acting on behalf of themselves and
as the Representatives of the
several Underwriters
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: _______________________________________________
Name:
Title:
S-1
SCHEDULE A
Number of Firm Number of Optional
Selling Stockholder Securities To Be Sold Securities To Be Sold
- ------------------- --------------------- ---------------------
--------------------- ---------------------
Total
===================== =====================
SCHEDULE B
Number of Firm
Securities
Underwriter To Be Purchased
----------- ---------------
Credit Suisse First Boston Corporation
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
----------
Total 14,000,000
==========
SCHEDULE C
Selling Stockholder
- -------------------