1
EXHIBIT 1
CODE-ALARM, INC.
$10,000,000 Principal Amount of ___%
Convertible Subordinated Debentures
Due December 1, 2002
UNDERWRITING AGREEMENT
DRAFT
RONEY & CO.
THE OHIO COMPANY
c/o Roney & Co.
One Griswold
Detroit, Michigan 48226
Ladies and Gentlemen:
Code-Alarm, Inc., a Michigan corporation (the "Company"), hereby confirms its
agreement with Roney & Co. and The Ohio Company (the "Underwriters") as set
forth below.
1. Securities. Subject to the terms and conditions herein contained, the
Company proposes to issue and sell to the Underwriters an aggregate of
$10,000,000 principal amount of ____% Convertible Subordinated Debentures due
December 1, 2002. Such $10,000,000 principal amount of Debentures are
referred to in this Agreement as the "Firm Debentures". The Company also
proposes to issue and sell to the Underwriters not more than an aggregate of
$1,500,000 principal amount of additional Debentures if requested by the
Underwriters as provided in Section 3 of this Agreement. Any and all
Debentures to be purchased by the Underwriters pursuant to such options are
referred to in this Agreement as the "Option Debentures," and the Firm
Debentures and any Option Debentures are collectively referred to in this
Agreement as the "Debentures." The Debentures are to be issued pursuant to an
indenture to be dated as of ___________, 1995 (the "Indenture") between the
Company and State Street Bank and Trust Company (the "Trustee").
2. Representations and Warranties of the Company. The Company represents and
warrants to, and agrees with, each of the Underwriters that:
(a) The Company meets the requirements for use of Form S-2 under the
Securities Act of 1933, as amended, and the rules and regulations of the
Securities and Exchange Commission (the "Commission") thereunder (collectively,
the "Act"). A registration statement on such Form (File No. 33-________) with
respect to the Debentures, which may be converted into Common Shares, without
par value, of the Company (the "Common Shares") as provided in the Indenture
(the "Underlying Common Shares") (together, the "Securities"), including a
prospectus subject to completion, has been prepared and filed by the Company
with the
2
Commission in accordance with the provisions of the Act, and one or more
amendments to such registration statement may have been so filed. As soon as
practicable after the execution of this Agreement, the Company will file with
the Commission either (1) if such registration statement, as it may have been
amended, has been declared by the Commission to be effective under the Act, a
prospectus in the form most recently included in an amendment to such
registration statement (or, if no such amendment shall have been filed, in such
registration statement), with such changes or insertions as are required by
Rule 430A under the Act or permitted by Rule 424(b) under the Act and as have
been provided to and approved by the Underwriters prior to the execution of
this Agreement, or (2) if such registration statement, as it may have been
amended, has not been declared by the Commission to be effective under the Act,
an amendment to such registration statement, including a form of prospectus, a
copy of which amendment has been furnished to and approved by the Underwriters
prior to the execution of this Agreement. As used in this Agreement, the term
"Registration Statement" means such registration statement, as amended at the
time when it was or is declared effective, and, in the event of any amendment
to such registration statement after the effective date and before the Firm
Closing Date and any Option Closing Date (as defined in Sections 3(a) and 3(b),
respectively), such registration statement as so amended, but only from and
after the effectiveness of such amendment, including (1) all financial
statements, schedules and exhibits thereto, (2) all documents (or portions
thereof) incorporated by reference therein filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and (3) any information omitted
therefrom pursuant to Rule 430A under the Act and included in the Prospectus
(as hereinafter defined). As used in this Agreement, the term "Preliminary
Prospectus" means each prospectus subject to completion filed with such
registration statement or any amendment thereto (including the prospectus
subject to completion, if any, included in the Registration Statement or any
amendment thereto at the time it was or is declared effective), including all
documents (or portions thereof) incorporated by reference therein filed under
the Exchange Act. As used in this Agreement, the term "Prospectus" means the
prospectus first filed with the Commission pursuant to Rule 424(b) under the
Act or, if no prospectus is required to be filed pursuant to said Rule 424(b),
such term means the prospectus included in the Registration Statement, at the
time the Registration Statement or any amendment thereto became effective, and,
in the event of any supplement or amendment to such prospectus before the Firm
Closing Date and any Option Closing Date, such prospectus as so supplemented or
amended but only from and after the filing with the Commission of such
supplement or the effectiveness of such amendment, in any case including all
documents (or portions thereof) incorporated by reference therein filed under
the Exchange Act.
(b) The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus. When any Preliminary Prospectus was filed
with the Commission, it (1) contained all statements required to be stated
therein in accordance with, and complied in all material respects with the
requirements of, the Act, the Exchange Act, the Trust Indenture Act of 1939 as
amended, if required (the "Trust Indenture Act"), and the respective rules and
regulations of the Commission thereunder and (2) did not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. When the Registration Statement or any
amendment thereto was or is declared effective and at all times
2
3
subsequent thereto up to and including the Firm Closing Date and any Option
Closing Date, it (1) contained or will contain all statements required to be
stated therein in accordance with, and complied or will comply in all material
respects with the requirements of, the Act, the Trust Indenture Act, if
required, the Exchange Act and the respective rules and regulations of the
Commission thereunder and (2) did not or will 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, in light of the
circumstances under which they were made, not misleading. When the Prospectus
or any amendment or supplement thereto is filed with the Commission pursuant to
Rule 424(b) (or, if the Prospectus or such amendment or supplement is not
required to be so filed, when the Registration Statement or the amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective), on the date when the Prospectus is otherwise amended or
supplemented and at all times subsequent thereto up to and including the Firm
Closing Date and any Option Closing Date (as defined in Sections 3(a) and 3(b),
respectively), the Prospectus, as amended or supplemented at any such time, (1)
contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with the
requirements of, the Act, the Trust Indenture Act, if required, the Exchange
Act and the respective rules and regulations of the Commission thereunder and
(2) did not or will not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (b) do not apply to statements or
omissions made in any Preliminary Prospectus, the Registration Statement or any
amendment thereto or the Prospectus or any amendment or supplement thereto in
reliance upon, and in conformity with, written information furnished to the
Company by you specifically for use therein.
(c) The Company's only subsidiaries are listed on Schedule 1 to this
Agreement. The Company and each of its subsidiaries have been duly organized
and are validly existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation and are duly qualified to
transact business as foreign corporations and are in good standing under the
laws of all other jurisdictions where the ownership or leasing of their
respective properties or the nature or conduct of their respective businesses
requires such qualification, except where the failure to be so qualified would
not have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(d) The Company and each of its subsidiaries have full power (corporate
and other) to own or lease their respective properties and conduct their
respective businesses as described in the Registration Statement and the
Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus; and the Company has full power (corporate and other) to
enter into this Agreement and to carry out all the terms and provisions of this
Agreement to be carried out by it.
(e) The authorized, issued and outstanding shares of capital stock of each
of the Company's subsidiaries are set forth on Schedule 2 to this Agreement.
Such issued and outstanding shares have been duly authorized and validly
issued, are fully paid and nonassessable
3
4
and are all owned beneficially by the Company free and clear of all
restrictions on transfer (other than those imposed by the Act and the
securities or Blue Sky laws of various jurisdictions) and any security
interests, liens, encumbrances, equities and claims.
(f) The Company has an authorized, issued and outstanding capitalization
as set forth in the Prospectus or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus, under the caption "Capitalization." All of
the issued and outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable and
free of preemptive rights and contractual rights to purchase other than the
Company's stock option plan and except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). The Underlying Common Shares have been duly
authorized and duly reserved for issuance and, upon issuance in accordance with
the terms of the Debentures and the Indenture, the Underlying Common Shares
will be duly authorized, validly issued, fully paid and nonassessable. No
holder of outstanding shares of capital stock of the Company is entitled as
such to any preemptive or other rights to subscribe for any of the Securities,
and no holder of securities of the Company has any right which has not been
fully exercised or waived to require the Company to register the offer or sale
of any securities owned by such holder under the Act in the public offering
contemplated by this Agreement.
(g) The capital stock of the Company conforms to the description thereof
contained in the Registration Statement and the Prospectus or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus.
(h) The Indenture has been duly authorized, and when duly executed and
delivered by the Company, will constitute the valid and binding obligation of
the Company, enforceable in accordance with its terms.
(i) The Debentures have been duly authorized for issuance and sale
pursuant to this Agreement and, when duly executed, authenticated and delivered
to the Underwriters against payment therefor pursuant to the provisions of the
Indenture and this Agreement, will be valid and binding obligations of the
Company enforceable in accordance with their terms, and will be entitled to the
benefits of the Indenture, which will be substantially in the form previously
delivered to you; and the Debentures and the Indenture conform to all
statements relating thereto contained in the Registration Statement and
Prospectus (or if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(j) The consolidated financial statements and schedules of the Company and
its consolidated subsidiaries included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present the financial condition of the Company
and its consolidated subsidiaries and the results of operations and cash flows
as of the dates and periods therein specified. Such financial statements and
schedules have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise noted therein). The selected financial data
4
5
set forth under the caption "Selected Consolidated Financial Data" in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present, on the basis stated in the Prospectus
(or such Preliminary Prospectus), the information included therein.
(k) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), are
independent public accountants as required by the Act, the Exchange Act and the
related published rules and regulations thereunder.
(l) The execution and delivery of this Agreement have been duly authorized
by the Company. This Agreement has been duly executed and delivered by the
Company, and assuming due execution by the other parties to this Agreement, is
the legal, valid and binding agreement of the Company, enforceable by any such
party against the Company in accordance with its terms.
(m) No legal or governmental proceedings are pending to which the Company
or any of its subsidiaries is a party or to which the property of the Company
or any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not described therein (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus),
and no such proceedings have been threatened against the Company or any of its
subsidiaries or with respect to any of their respective properties. No
contract or other document is required to be described in the Registration
Statement or the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) or to be filed as an exhibit to the
Registration Statement that is not described therein or filed as required.
(n) The execution and delivery of this Agreement, the issuance, offering
and sale of the Debentures to the Underwriters by the Company pursuant to this
Agreement, the compliance by the Company with the other provisions of this
Agreement and the consummation of the other transactions contemplated by this
Agreement do not (1) require the consent, approval, authorization, registration
or qualification of or with any governmental authority, except such as have
been obtained, such as may be required under state securities or blue sky laws
and, if the registration statement (as amended) filed with respect to the
Securities is not effective under the Act as of the time of execution of this
Agreement, such as may be required (and shall be obtained as provided in this
Agreement) under the Act or the Trust Indenture Act, or (2) conflict with or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or any of their
respective properties are bound, or the Articles of Incorporation or other
charter documents, Code of Regulations or bylaws of the Company or any of its
subsidiaries, or any statute or any judgment, decree, order, rule or regulation
of any court or other governmental authority or any arbitrator or any other
laws applicable to the Company, any of its subsidiaries or any of their
respective properties.
5
6
(o) The Company has not, directly or indirectly, (1) taken any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Debentures or (2) since the filing of the registration statement originally
filed with respect to the Securities (A) sold, bid for, purchased, or paid
anyone any compensation for soliciting purchases of, the Debentures or the
Common Shares or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company other than
as herein provided.
(p) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), (1) the Company and its
subsidiaries have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the ordinary
course of business; (2) the Company has not purchased any of its outstanding
capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock; and (3) there has not been any
change in the capital stock, short-term debt or long-term debt of the Company
and its consolidated subsidiaries or any material loss or damage to the
property of the Company or any of its subsidiaries, any material adverse change
in the condition (financial or otherwise), business, results of operations,
cash flows or prospects of the Company and its subsidiaries, taken as a whole,
except in each case as described in or contemplated by the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus).
(q) The Company and each of its subsidiaries have good and marketable
title in fee simple to all items of real property and good and marketable title
to all personal property owned by each of them or described in the Prospectus
as owned by them, in each case free and clear of any security interests, liens,
encumbrances, equities, claims, charges, restrictions and other defects, except
the pledge of the capital stock of the Company's subsidiaries to NBD Bank to
secure the Company's current senior indebtedness and except such as do not
materially and adversely affect the value of such property and do not interfere
with the use made or proposed to be made of such property by the Company or
such subsidiary, and any real and personal property and buildings held under
lease by the Company or any such subsidiary are held under valid, subsisting
and enforceable leases, with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company or such subsidiary, in each case mentioned in this
paragraph except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus). The
Company and its subsidiaries own or lease all properties as are necessary to
its operations as now conducted and, except as otherwise stated in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), as proposed to be conducted as set forth in the
Prospectus.
(r) No labor dispute with the employees of the Company or any of its
subsidiaries exists or is threatened or imminent that could result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth, results of operations or cash
6
7
flows of the Company and its subsidiaries, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(s) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, all material patents, patent applications, trademarks,
service marks, trade names, licenses, copyrights and proprietary or other
confidential information currently employed by them in connection with their
respective businesses, and neither the Company nor any such subsidiary has
received any notice of infringement of or conflict with asserted rights of any
third party with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a material adverse change in the condition (financial or otherwise),
business prospects, net worth, results of operations or cash flows of the
Company and its subsidiaries, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). The expiration of any trademarks, copyrights or
patents held or used by the Company or any of its subsidiaries would not
materially adversely affect the condition (financial or otherwise), business
prospects, net worth, results of operations or cash flows of the Company and
its subsidiaries, except as described in or contemplated by the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary Prospectus).
(t) The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged. Neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for, and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not materially and adversely affect the condition
(financial or otherwise), business prospects, net worth, results of operations
or cash flows of the Company and its subsidiaries, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(u) 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 any other
subsidiary of the Company, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and except to the extent that the Company has pledged
the capital stock of the Company's subsidiaries to NBD Bank to secure the
Company's current senior indebtedness.
(v) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses, and
neither the Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
7
8
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth, results of operations or cash flows of the Company and
its subsidiaries, except as described in or contemplated by the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary Prospectus).
(w) The Company will conduct its operations in a manner that will not
subject it to registration as an investment company under the Investment
Company Act of 1940, as amended, and this transaction will not cause the
Company to become an investment company subject to registration under such Act.
(x) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a material
adverse effect on the Company and its subsidiaries) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being contested in
good faith or as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(y) Neither the Company nor any of its subsidiaries is in violation of any
federal, state or foreign law or regulation relating to occupational safety and
health or to the storage, handling or transportation of hazardous or toxic
materials, and the Company and its subsidiaries have received all permits,
licenses or other approvals required of them under applicable federal, state
and foreign occupational safety and health and environmental laws and
regulations to conduct their respective businesses, and the Company and each
such subsidiary is in compliance with all terms and conditions of any such
permit, license or approval, except any such violation of law or regulation,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
which would not, singly or in the aggregate, result in a material adverse
change in the condition (financial or otherwise), business prospects, net
worth, results of operations or cash flows of the Company and its subsidiaries,
except as described in or contemplated by the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus).
(z) Each certificate signed by any officer of the Company and delivered to
the Underwriters or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
(aa) Except for the shares of capital stock of each of the subsidiaries
owned by the Company and such subsidiaries, neither the Company nor any such
subsidiary owns any shares of stock or any other equity securities of any
corporation or has any equity interest in any firm, partnership, association or
other entity, except as described in or contemplated by the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus).
8
9
(bb) There is no holder of securities of the Company, who, by reason of the
filing of the Registration Statement, has the right to request the Company to
register under the Act, or to include in the Registration Statement, securities
held by such holder, except to the extent such holder has waived such rights in
writing or except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(cc) The Company and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with management's general or specific
authorizations; (2) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (3) access to
assets is permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(dd) No default exists, and no event has occurred which, with notice or
lapse of time or both, would constitute a default, in the due performance and
observance of any term, covenant or condition of any bond, debenture,
indenture, note, evidence of indebtedness, mortgage, deed of trust, lease or
other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or any of their
respective properties is bound or may be affected in any material adverse
respect with regard to property, business or operations of the Company and its
subsidiaries, except as described in or contemplated by the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus).
Neither the Company nor any of its subsidiaries is in violation of its Articles
of Incorporation or bylaws.
(ee) None of the Company, its subsidiaries or any employee of the Company
or its subsidiaries has made any payment of funds of the Company or its
subsidiaries prohibited by law and no funds of the Company or its subsidiaries
have been set aside to be used for any payment prohibited by law.
3. Purchase, Sale and Delivery of the Debentures.
(a) On the basis of the representations, warranties, agreements and
covenants contained in this Agreement and subject to the terms and conditions
set forth in this Agreement, the Company agrees to sell to each of the
Underwriters, and each of the Underwriters, individually and not jointly,
agrees to purchase from the Company, at a purchase price equal to ____% of the
principal amount, the respective principal amount of Firm Debentures set forth
opposite the name of such Underwriter in Schedule 3 to this Agreement. One or
more certificates in definitive form for the Firm Debentures that the several
Underwriters have agreed to purchase under this Agreement, and in such
denomination or denominations and registered in such name or names as you
request upon notice to the Company at least 48 hours prior to the Firm Closing
Date, shall be delivered by or on behalf of the Company to you on the Closing
Date for the
9
10
respective accounts of the several Underwriters, against payment by or on
behalf of the Underwriters of the purchase price therefor by certified or
official bank checks drawn upon or by a New York Clearing House bank and
payable in next-day funds to the order of the Company or at the option of the
Underwriters, by wire transfer to the account of the Company in same-day funds.
Such delivery of, and payment for, the Firm Debentures shall be made at the
offices of Clark, Klein & Beaumont P.L.C., 1600 First Federal Building,
Detroit, Michigan 48226, at 9:30 A.M., Detroit time, on ______________, 1995,
or at such other place, time or date as you and the Company may agree upon or
as you may determine pursuant to Section 9 of this Agreement, such time and
date of delivery against payment being referred to in this Agreement as the
"Firm Closing Date". The Company will make such certificate or certificates
for the Firm Debentures available to you for inspection at the offices in
Madison Heights, Michigan of the Company's transfer agent or registrar or of
Roney & Co. at least 24 hours prior to the Firm Closing Date.
(b) For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Debentures as contemplated by the Prospectus,
the Company hereby grants to the Underwriters options to purchase, individually
and not jointly, the Option Debentures. The purchase price to be paid for any
Option Debentures shall be the same as the price for the Firm Debentures set
forth above in paragraph (a) of this Section 3, plus accrued interest from
______________, 1995 to the Option Closing Date. The options granted hereby
may be exercised as to all or any part of the Option Debentures from time to
time within 30 days after the date of the Prospectus (or, if such 30th day
shall be a Saturday or a Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange is open for trading). The
Underwriters shall not be under any obligation to purchase any of the Option
Debentures prior to the exercise of such options. The Underwriters may from
time to time exercise the options granted hereby by giving notice in writing or
by telephone (confirmed in writing) to the Company setting forth the aggregate
principal amount of Option Debentures as to which the Underwriters are then
exercising the options and the date and time for delivery of and payment for
such Option Debentures. Any such date of delivery shall be determined by the
Underwriters but shall not be earlier than two business days or later than
seven business days after such exercise of the options and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time, date or both as the Underwriters and the Company
may agree upon or as the Underwriters may determine pursuant to Section 9 of
this Agreement, are called the "Option Closing Date" in this Agreement with
respect to such Option Debentures. Upon exercise of the options as provided in
this Agreement, the Company shall become obligated to sell to each of the
Underwriters, and, on the basis of the representations and warranties contained
in this Agreement and subject to the terms and conditions set forth in this
Agreement, each of the Underwriters, individually and not jointly, shall become
obligated to purchase from the Company, the same percentage of the total
principal amount of the Option Debentures as to which the Underwriters are then
exercising the options as such Underwriter is obligated to purchase of the
aggregate number of Firm Debentures (subject to such adjustments to provide for
purchases of Debentures in principal amounts that are even multiples of $1,000
as you may determine). If the options are exercised as to all or any portion
of the Option Debentures, one or more certificates in definitive form for such
Option Debentures,
10
11
and payment therefor, shall be delivered on the related Option Closing Date in
the manner, and upon the terms and conditions, set forth in paragraph (a) of
this Section 3, except that reference therein to the Firm Debentures and the
Firm Closing Date shall be deemed, for purposes of this paragraph (b), to refer
to such Option Debentures and Option Closing Date, respectively.
4. Offering by the Underwriters. Upon our authorization of the release of
the Firm Debentures, the Underwriters propose to offer their respective
portions of the Firm Debentures for sale to the public upon the terms set forth
in the Prospectus.
5. Covenants. Covenants of the Company. The Company covenants and agrees
with each of the Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and any
amendments thereto, to become effective as promptly as possible. If required,
the Company will file the Prospectus and any amendment or supplement thereto
with the Commission in the manner and within the time period required by Rule
424(b) under the Act. During any time when a prospectus relating to the
Securities is required to be delivered under the Act (or until the Firm Closing
Date and any Option Closing Date, if later), the Company (1) will comply with
all requirements imposed upon it by the Act, the Trust Indenture Act, the
Exchange Act and the respective rules and regulations of the Commission
thereunder to the extent necessary to permit the continuance of sales of or
dealings in the Securities in accordance with the provisions of this Agreement
and of the Prospectus, as then amended or supplemented, and (2) will not file
with the Commission the Prospectus or the amendment referred to in the third
sentence of Section 2(a) of this Agreement, any amendment or supplement to such
Prospectus or any amendment to the Registration Statement of which the
Underwriters shall not previously have been advised and furnished with a copy a
reasonable period of time prior to the proposed filing or as to which filing
you shall not have given your consent. The Company will prepare and file with
the Commission, in accordance with the Act and the rules and regulations on the
Commission, promptly upon request by the Underwriters or counsel for the
Underwriters, any amendments to the Registration Statement or amendments or
supplements to the Prospectus that may be necessary or advisable in connection
with the distribution of the Securities by the Underwriters, and will use its
best efforts to cause any such amendment to the Registration Statement to be
declared effective by the Commission as promptly as possible. The Company will
advise you, promptly after receiving notice thereof, of the time when the
Registration Statement or any amendment thereto has been filed or declared
effective or the Prospectus or any amendment or supplement thereto has been
filed and will provide evidence satisfactory to you of each such filing or
effectiveness.
(b) The Company will advise the Underwriters, promptly after receiving
notice or obtaining knowledge thereof, of (1) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereto or any order directed at any document
incorporated by reference in the Registration Statement or the Prospectus or
any amendment or supplement thereto or any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or any amendment or
11
12
supplement thereto, (2) the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, (3) the institution, threatening or
contemplation of any proceeding for any such purpose or (4) any request made by
the Commission for amending the Registration Statement, for amending or
supplementing any Preliminary Prospectus or the Prospectus or for additional
information. The Company will use its best efforts to prevent the issuance of
any such stop order and, if any such stop order is used, to obtain the
withdrawal thereof as promptly as possible.
(c) The Company will arrange for the registration or qualification of the
Securities for offering and sale under the securities or blue sky laws of such
jurisdictions as you may designate and will continue such qualifications in
effect for as long as may be necessary to complete the distribution of the
Securities, provided, however, that in connection with such qualification the
Company shall not be required to qualify as a foreign corporation or to execute
a general consent to service of process in any jurisdiction.
(d) If, at any time prior to the later of (1) the final date when a
prospectus relating to the Securities is required to be delivered under the Act
or (2) the Firm Closing Date and any Option Closing Date, any event occurs as a
result of which the Prospectus, as then amended or supplemented, would include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if for any other
reason it is necessary at any time to amend or supplement the Prospectus to
comply with the Act, the Exchange Act, the Trust Indenture Act, the respective
rules or regulations of the Commission thereunder or any other law, the Company
will promptly notify the Underwriters thereof and, subject to Section 5(a) of
this Agreement, will prepare and file with the Commission, at the Company's
expense, an amendment to the Registration Statement or an amendment or
supplement to the Prospectus that corrects such statement or omission or
effects such compliance.
(e) The Company will, without charge, provide (1) to each of the
Underwriters and to counsel for the Underwriters a signed copy of the
registration statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto), and a conformed
copy of such registration statement and each amendment thereto (in each case
without exhibits thereto) and (2) so long as a prospectus relating to the
Securities is required to be delivered under the Act, as many copies of each
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto
as the Underwriters, counsel for the Underwriters or any dealer may reasonably
request.
(f) The Company, as soon as practicable, will make generally available to
its security holders and to the Underwriters a consolidated earnings statement
of the Company and its subsidiaries that satisfies the provisions of Section
11(a) of the Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of the
Securities sold by the Company as set forth under "Use of Proceeds" in the
Prospectus.
12
13
(h) The Company will not, directly or indirectly, without your prior
written consent, offer, sell, offer to sell, contract to sell, grant any option
to purchase or otherwise sell or dispose of (or announce any offer, sale, offer
of sale, contract of sale, grant of any option to purchase or other sale or
other disposition of) any Common Shares or any securities convertible into, or
exchangeable or exercisable for, Common Shares for a period of 120 days after
the date of this Agreement except for (1) issuances pursuant to the exercise of
warrants outstanding on the date of this Agreement or pursuant to the exercise
of employee stock options outstanding on the date of this Agreement, or (2) the
grant of employee stock options pursuant to the Company's stock option plans in
effect on the date of this Agreement, provided that any employee stock options
so granted after the date of this Agreement are not exercisable prior to 120
days after the date of this Agreement, or (3) issuances of Common Shares
pursuant to the Company's Employee Stock Purchase Plan, as such plan exists on
the date of this Agreement, or (4) issuances and sales of the Debentures to the
Underwriters pursuant to this Agreement, or (5) issuances of Common Shares upon
conversion of the Debentures.
(i) The Company will not, directly or indirectly, (1) take any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (2) (A) sell, bid for, purchase, attempt to induce any person to
purchase, or pay anyone any compensation for soliciting purchases of, the
Securities or (B) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(j) If at any time during the 25-day period after the Registration
Statement becomes effective or the period prior to the Option Closing Date, any
rumor, publication or event relating to or affecting the Company shall occur as
a result of which in your opinion the market price of the Common Shares has
been or is likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the
Prospectus), the Company will, after written notice from you advising the
Company to the effect set forth above, forthwith prepare, consult with you
concerning the substance of, and disseminate a press release or other public
statement, reasonably satisfactory to you, responding to or commenting on such
rumor, publication or event.
(k) At all times prior to the conversion of the Debentures, the Underlying
Common Shares shall remain duly authorized and duly reserved for issuance.
(l) For a period of three years from the effective date of the
Registration Statement, the Company shall furnish to you copies of all public
reports filed by the Company and all reports and financial statements furnished
by the Company to its shareholders, The Nasdaq Stock Market, any stock exchange
upon which the Company's securities are traded, or to the Commission pursuant
to the Exchange Act or any rule or regulation of the Commission under the
Exchange Act (except for exhibits, which, however, will be furnished upon
request).
13
14
6. Expenses.
(a) The Company will pay all costs, expenses, fees and taxes incident to
the performance of its obligations under this Agreement, whether or not the
transactions contemplated by this Agreement are consummated or this Agreement
is terminated pursuant to Section 11 of this Agreement, including all costs,
expenses fees and taxes incident to (1) the preparing, printing or other
production and filing of documents with respect to the transactions, including
any costs of printing the registration statement originally filed with respect
to the Securities and any amendment thereto (including, without limitation, the
Registration Statement), any Preliminary Prospectus and the Prospectus and any
amendment or supplement thereto, this Agreement, the Agreement Among
Underwriters, the Selected Dealer Agreement, the Underwriters' Questionnaire
and Power of Attorney, any blue sky memoranda and all other agreements,
memoranda, correspondence and other documents printed and delivered in
connection with the offering of the Securities, (2) all arrangements relating
to the delivery to the Underwriters of copies of the foregoing documents, (3)
the fees and disbursements of the counsel, the accountants and any other
experts or advisors retained by the Company, (4) preparation, issuance and
delivery to the Underwriters of any certificates evidencing the Securities,
including transfer agent's and registrar's fees, (5) the registration or
qualification of the Securities under state securities and blue sky laws,
including filing fees and the reasonable legal fees and disbursements of
counsel for the Underwriters relating thereto or to the "Blue Sky" survey,
which filing fees and counsel fee shall not exceed $15,000, (6) the filing fees
of the Commission and the National Association of Securities Dealers, Inc.
relating to the Securities and any listing fees relating to the Securities, (7)
the fees and expenses of the Trustee, and (8) advertising relating to the
offering of the Securities (other than as shall have been specifically approved
by the Underwriters to be paid for by the Underwriters). If the sale of the
Securities provided for in this Agreement is not consummated because any
condition to the obligations of the Underwriters set forth in Section 7 of this
Agreement is not satisfied, because this Agreement is terminated pursuant to
Section 11 of this Agreement, because of any failure, refusal or inability on
the part of the Company to perform all obligations and satisfy all conditions
on its or their part to be performed or satisfied under this Agreement (other
than by reason of a default by any of the Underwriters) or for any other reason
(other than because of the Underwriters' refusal (except for bona fide reasons
related to the Company, its officers, directors, employees or agents or market
conditions) or inability to perform), the Company will reimburse the
Underwriters individually upon demand for all out-of- pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities. The Company shall not in any event be liable to any of the
Underwriters for the loss of anticipated profits from the transactions covered
by this Agreement.
(b) The provisions of paragraph 10 of the letter of intent dated August
16, 1995 among the Company and the Underwriters, a copy of which is attached as
Exhibit 6(b) to this Agreement (the "Letter of Intent"), which provisions
provide for payments of fees and reimbursement of expenses incurred in
connection with the Underwriters' engagement by the Company, are incorporated
into, and are a part of, this Agreement in their entirety; such provisions will
continue to apply as if they were set forth in this Agreement.
14
15
7. Conditions of the Underwriters' Obligations. The several obligations of
each of the Underwriters to purchase and pay for the Firm Debentures shall be
subject, in the Underwriters' sole discretion, to the accuracy of the
representations and warranties of the Company contained in this Agreement as of
the date of this Agreement and as of the Firm Closing Date, as if made on and
as of the Firm Closing Date, to the accuracy of the statements of the Company's
officers made pursuant to the provisions of this Agreement, to the performance
by the Company of its covenants and agreements under this Agreement and to the
following additional conditions:
(a) If the Registration Statement or any amendment to the Registration
Statement filed prior to the Firm Closing Date has not been declared effective
as of the time of execution of this Agreement, the Registration Statement or
such amendment shall have been declared effective not later than 11:00 A.M.,
New York City time, on the date on which an amendment to the registration
statement originally filed with respect to the Securities or to the
Registration Statement, as the case may be, containing information regarding
the initial public offering price of the Securities has been filed with the
Commission, or such later time and date as shall have been consented to by you.
If required, the Prospectus and any amendment or supplement thereto shall have
been filed with the Commission in the manner and within the time period
required by Rule 424(b) under the Act. No stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment to
the Registration Statement and no order directed at any document incorporated
by reference in the Registration Statement or the Prospectus or any amendment
or supplement thereto shall have been issued and no proceedings for that
purpose shall have been instituted or threatened or, to the knowledge of the
Company or the Underwriters, shall be contemplated by the Commission. The
Company shall have complied with any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise).
(b) You shall have received on the Firm Closing Date an opinion addressed
to the Underwriters (satisfactory to you and counsel for the Underwriters),
dated the Firm Closing Date, of Clark, Klein & Beaumont, P.L.C., counsel for
the Company, to the effect that:
(1) the Company and each of its subsidiaries listed in Schedule 1 to this
Agreement (the "Subsidiaries") have been duly organized and are validly
existing as corporations in good standing under the laws of their respective
jurisdictions of incorporation and are duly qualified to transact business as
foreign corporations and are in good standing under the laws of all other
jurisdictions where the ownership or leasing of their respective properties or
the conduct of their respective businesses requires such qualification, except
where the failure to be so qualified would not have a material adverse effect
on the Company and its Subsidiaries, taken as a whole;
(2) the Company and each of the Subsidiaries have corporate power to own
or lease their respective properties and conduct their respective businesses as
described in the Registration Statement and the Prospectus, and the Company has
corporate power to enter into
15
16
this Agreement and to carry out all the terms and provisions of this Agreement
to be carried out by it;
(3) the issued and outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable and are owned beneficially by the Company free and clear of any
adverse claim, as defined in the applicable Uniform Commercial Code, or, to the
best knowledge of such counsel, any other security interests, liens,
encumbrances, equities or claims except to the extent that the Company has
pledged such securities to NBD Bank to secure the Company's current senior
indebtedness;
(4) the Indenture (A) has been duly and validly authorized, executed and
delivered by the Company, (B) is duly qualified under the Trust Indenture Act
or such qualification is not required under the provisions of the Trust
Indenture Act and (C) constitutes the valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
as (i) enforcement thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting enforcement of
creditors' rights generally and (ii) enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(5) the Debentures (A) are in the form contemplated by the Indenture, (B)
have been duly and validly authorized for issuance and sale by all necessary
corporate action, and (C) constitute the valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
as (a) enforcement thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting enforcement of
creditors' rights generally and (b) enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(6) the Debentures and the Indenture conform in all material respects to
the descriptions thereof contained in the Registration Statement and the
Prospectus and the form of certificate used to evidence the Debentures is in
the form required by law and by the Indenture;
(7) the authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus under the caption "Capitalization"; all of
the issued and outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable, have
been issued in compliance with all applicable federal and state securities laws
and were not issued in violation of, or subject to, any preemptive rights or
other rights to subscribe for or purchase securities; the certificates for such
outstanding capital stock are valid and in proper legal form; the Underlying
Common Shares have been duly authorized and duly reserved for issuance by all
necessary corporate action of the Company and, when issued and delivered in
accordance with the terms of the Debentures and the Indenture, will be validly
issued, fully paid and nonassessable; no holders of outstanding shares of
capital stock of the Company are entitled as such to any preemptive or other
rights to subscribe for any of the Securities; and no holders of securities of
the Company are entitled to have such securities
16
17
registered under the Registration Statement, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus);
(8) the statements set forth under the headings "Description of
Debentures" and "Description of Capital Stock" in the Prospectus, insofar as
such statements purport to summarize certain provisions of the Debentures and
capital stock of the Company, provide a fair summary of such provisions; and
the statements set forth under the headings "Business" and "Legal Proceedings"
in the Prospectus, insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to under such headings, provide a
fair summary of such legal matters, documents and proceedings discussed under
such headings;
(9) the execution and delivery of this Agreement have been duly
authorized by all necessary corporate action of the Company and this Agreement
has been duly executed and delivered by the Company;
(10) after due inquiry and to the best knowledge of such counsel, no legal
or governmental proceedings are pending to which the Company or any of the
Subsidiaries is a party or to which the property of the Company or any of the
Subsidiaries is subject that are required to be described in the Registration
Statement or the Prospectus and that are not described therein, and, to the
best knowledge of such counsel, no such proceedings have been threatened
against the Company or any of the Subsidiaries or with respect to any of their
respective properties; and no contract or other document is required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement that is not described therein or filed as
required;
(11) the issuance, offering and sale of the Debentures to the Underwriters
by the Company pursuant to this Agreement, the execution and delivery of this
Agreement, the compliance by the Company with the other provisions of this
Agreement and the consummation of the other transactions contemplated by this
Agreement do not (A) require the consent, approval, authorization, registration
or qualification of or with any governmental authority, except such as have
been obtained and such as may be required under state securities or blue sky
laws, or (B) conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, lease or other agreement or instrument, known to such
counsel, to which the Company or any of the Subsidiaries is a party or by which
the Company or any of the Subsidiaries or any of their respective properties
are bound, or the charter documents, Code of Regulations or bylaws of the
Company or any of the Subsidiaries, or any statute or any judgment, decree,
order, rule, regulation or other law of any court or other governmental
authority or any arbitrator known to such counsel and applicable to the Company
or any of the Subsidiaries;
(12) the Registration Statement is effective under the Act; any required
filing of the Prospectus pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment to the Registration Statement and no order directed
17
18
at any document incorporated by reference in the Registration Statement or the
Prospectus or any amendment or supplement thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to the best
knowledge of such counsel, are contemplated by the Commission;
(13) the registration statement originally filed with respect to the
Securities and each amendment thereto (including, without limitation, the
Registration Statement) and the Prospectus and any supplement or amendment
thereto (in each case, including the documents incorporated by reference
therein but not including the financial statements and other financial
information contained therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the Act, the Exchange Act, the Trust Indenture Act and the
respective rules and regulations of the Commission thereunder and the Indenture
and the Statement of Eligibility and Qualification of the Trustee on Form T-1,
if required to be filed with the Commission as part of the Registration
Statement, comply as to form in all material respects to the requirements of
the Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission thereunder;
(14) the Company and the Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses; and
(15) this transaction will not cause the Company to become an investment
company subject to registration under the Investment Company Act of 1940.
Such counsel shall also state that they have no reason to believe that the
Registration Statement or any amendment to the Registration Statement, as of
its effective date or as of the date of such opinion, 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 or any amendment or supplement thereto, as of its date or
the date of such opinion, included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (except that such counsel need not express any
belief as to financial statements and other financial information contained in
the Registration Statement or Prospectus).
In rendering any such opinion, such counsel may rely, as to matters of fact,
to the extent such counsel deems reasonable, on certificates of responsible
officers of the Company and public officials and, as to matters involving the
application of laws of any jurisdiction other than the State of Michigan or the
United States, to the extent satisfactory in form and scope to counsel for the
Underwriters, upon the opinion of local counsel reasonably satisfactory to
counsel for the Underwriters, and copies of such opinion shall be delivered to
the Underwriters and counsel for the Underwriters.
18
19
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(c) You shall have received on the Firm Closing Date an opinion addressed
to the Underwriters, dated the Firm Closing Date, of Honigman Miller Schwartz
and Cohn, counsel for the Underwriters, with respect to the issuance and sale
of the Firm Debentures, the Registration Statement and the Prospectus, and such
other related matters as the Underwriters may reasonably require, and the
Company shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such matters.
In rendering such opinion, such counsel may rely as to all matters involving
the application of laws of any jurisdiction other than the State of Michigan or
the United States upon the opinion of Clark, Klein & Beaumont, P.L.C. referred
to in paragraph (b) above.
(d) You shall have received letters, on and as of the date of this
Agreement and on and as of the Firm Closing Date, from Deloitte & Touche
LLP, certified public accountants for the Company, in form and substance
satisfactory to the Underwriters, to the effect that:
(1) they are independent public accountants with respect to the Company
and its consolidated subsidiaries within the meaning of the Act, the Exchange
Act and the applicable rules and regulations thereunder;
(2) in their opinion, the consolidated financial statements and schedules
of the Company and its consolidated subsidiaries examined by them and
included or incorporated by reference in the Registration Statement and the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act, the Exchange Act, the related published
rules and regulations thereunder and Staff Accounting Bulletins with respect
to registration statements on Form S-2 and the Exchange Act documents and
filings incorporated by reference therein;
(3) on the basis of a reading of the September 30, 1995 unaudited
consolidated financial statements and schedules of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus, a reading of the latest interim
unaudited consolidated financial statements of the Company and its
consolidated subsidiaries, a reading of the minutes of the meetings of the
shareholders, the board of directors and any committees thereof of the
Company and each of its consolidated subsidiaries, inquiries of certain
officials of the Company and its consolidated subsidiaries who have
responsibility for financial and accounting matters, such limited review and
auditing procedures and inquiries as may be in accordance with standards for
such reviews promulgated by the American Institute of Certified Public
Accountants and other specific procedures and inquiries, nothing came to
their attention that caused them to believe that:
19
20
(A) the unaudited consolidated financial statements and schedules of
the Company and its consolidated subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus do not comply as
to form in all material respects with the applicable accounting requirements
of the Act, the Exchange Act and the related published rules and regulations
thereunder and Staff Accounting Bulletins with respect to registration
statements on Form S-2 and the Exchange Act documents and filings
incorporated by reference therein or such unaudited consolidated financial
statements are not fairly presented in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that
of the audited consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus or such unaudited
schedules, when considered in relation to the unaudited financial statements
included or incorporated by reference in the Prospectus, do not present
fairly in all material respects the information shown therein;
(B) at the date of the latest balance sheet read by them and at a
subsequent specific date not more than five business days prior to the date
of such letter, there were any changes in the capital stock or long-term
debt of the Company and its consolidated subsidiaries or any decreases in
net current assets or shareholders' equity of the Company and its
consolidated subsidiaries, in each case compared with amounts shown on the
September 30, 1995 unaudited consolidated balance sheet included or
incorporated by reference in the Registration Statement and the Prospectus,
except for changes which the Prospectus discloses have occurred or may occur
or which are described in the letter;
(C) at the date of the latest consolidated balance sheet read by them
and at a subsequent specific date not more than five business days prior to
the date of such letter there were any decreases, as compared with amounts
shown in the unaudited consolidated balance sheet as of September 30, 1995
included or incorporated by reference in the Prospectus, in consolidated
total assets, working capital, long-term debt or shareholders' equity of
the Company and its consolidated subsidiaries, except for decreases which
the Prospectus discloses have occurred or may occur or which are described
in such letter;
(D) for the period from September 30, 1995 to the date of the latest
consolidated income statement read by them, and for the period from
September 30, 1995 to a subsequent specified date not more than five
business days prior to the date of such letter, there were any decreases, as
compared with the corresponding period of the preceding year in consolidated
revenues, gross profit, operating income, earnings before income taxes or
the total or per share amounts of income before extraordinary items or of
net income or of the Company
20
21
and its consolidated subsidiaries, except for decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter;
and
(4) on the basis of their examinations referred to in their report
contained or incorporated by reference in the Prospectus, the limited
procedures referred to in (3) above and the carrying out of certain other
specified procedures, not constituting an audit, they have compared certain
specified amounts, percentages and financial information included in the
Registration Statement and the Prospectus, in Exhibits 11 and 12 to the
Registration Statement or in the Company's Quarterly Reports on Form 10-Q for
the fiscal quarters ended March 31, 1995, June 30, 1995 and September 30,
1995 incorporated by reference in the Registration Statement and Prospectus
with the underlying accounting records of the Company and its consolidated
subsidiaries and with information derived from such records and have found
them to be in agreement, excluding any questions of legal interpretation.
(e) If the letters referred to in paragraph (d) above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (1) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Underwriters deem such explanation unnecessary, and (2) such changes, decreases
or increases do not, in the sole judgment of the Underwriters, make it
impractical or inadvisable to proceed with the purchase and delivery of the
Debentures as contemplated by the Registration Statement. References to the
Registration Statement and the Prospectus in paragraph (d) and this paragraph
(e) with respect to the letters referred to above shall include any amendment
or supplement thereto at the date of such letter.
(f) You shall have received on the Firm Closing Date a certificate, dated
the Firm Closing Date, of the Chief Executive Officer and the Chief Financial
Officer of the Company to the effect that:
(1) the representations and warranties of the Company in this Agreement
are true and correct as if made on and as of the Firm Closing Date; the
Registration Statement, as amended as of the Firm Closing Date, does 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, and the Prospectus, as amended or supplemented as of
the Firm Closing Date, does not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and the Company has performed all covenants and
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Firm Closing Date;
(2) no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto and no order directed at
any document incorporated by reference in the Registration Statement or the
Prospectus or any amendment or supplement thereto has been issued, and no
proceedings for that purpose
21
22
have been instituted or threatened or, to the best of the Company's
knowledge, are contemplated by the Commission; and
(3) subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, (i) neither the Company nor
any of its subsidiaries has sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or from any
labor dispute or any legal or governmental proceeding, and (ii) there has not
been any material adverse change, or any development involving a prospective
material adverse change, in the condition (financial or otherwise),
management, business, net worth, cash flows or results of operations of the
Company or any of its subsidiaries, except in each case as described in or
contemplated by the Prospectus, and (iii) there has not been any change in
the capital stock or a material increase in the long-term debt of the Company
and its subsidiaries, except in each case as described in or contemplated by
the Prospectus, and (iv) the Company has not incurred any liability or
obligation, direct or contingent, which is material to the Company and its
subsidiaries taken as a whole, except in each case as described in or
contemplated by the Prospectus.
(g) On or before the Firm Closing Date, the Underwriters and counsel for
the Underwriters shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company.
All opinions, certificates, letters and documents delivered pursuant to this
Agreement will comply with the provisions of this Agreement only if they are
reasonably satisfactory in all material respects to the Underwriters and
counsel for the Underwriters. The Company shall furnish to the Underwriters
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Underwriters and counsel for the Underwriters shall
reasonably request.
The several obligations of each of the Underwriters to purchase and pay for
any Option Debentures shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Debentures, except that all
references to the Firm Debentures and the Firm Closing Date shall be deemed to
refer to such Option Debentures and the related Option Closing Date,
respectively.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
their respective directors, officers, partners, agents and employees and each
other person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (collectively,
"Indemnitees") against any losses, claims, damages or liabilities, joint or
several, to which such Indemnitee may become subject under the Act, the
Exchange Act or
22
23
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of, relate to, or are caused by or based upon:
(1) any untrue statement or alleged untrue statement made by the Company
in this Agreement,
(2) any untrue statement or alleged untrue statement of any material fact
contained in (A) the Registration Statement or any amendment thereto or any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto or (B) any application or other document, or any amendment or
supplement thereto, executed by the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in order
to qualify the Securities under the securities or blue sky laws thereof or
filed with the Commission or any securities association or securities
exchange (each an "Application"),
(3) any omission or alleged omission to state in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or any Application a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or
(4) any untrue statement or alleged untrue statement of any material fact
contained in any audio or visual materials prepared by the Company and used
in connection with the marketing of the Securities, including, without
limitation, slides, videos, films, and tape recordings,
and will reimburse, as incurred, each Indemnitee for any legal or other
expenses reasonably incurred by such Indemnitee in connection with
investigating, defending against, or appearing as a third-party witness in
connection with, any such loss, claim, damage, liability or action; 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, is related to, or
is caused by or based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto, or any Application in reliance upon, and in conformity
with, written information furnished to the Company by any Underwriter expressly
for use therein; and provided, further, that the Company will not be liable to
any Indemnitee with respect to any such untrue statement or omission made in
any Preliminary Prospectus that is corrected in the Prospectus (or any
amendment or supplement thereto) if the person asserting any such loss, claim,
damage or liability purchased Debentures from such Underwriter but was not sent
or given a copy of the Prospectus (as amended or supplemented), other than the
documents incorporated by reference therein, at or prior to the written
confirmation of the sale of such Debentures to such person in any case where
such delivery of the Prospectus (as amended or supplemented) is required by the
Act and where delivery of such Prospectus (as amended or supplemented) would
23
24
have cured the defect giving rise to such loss, claim, damage or liability,
unless such failure to deliver the Prospectus (as amended or supplemented) was
a result of noncompliance by the Company with Section 5(d) or 5(e) of this
Agreement. This indemnity agreement will be in addition to any liability which
the Company may otherwise have. The Company will not, without the prior
written consent of the Underwriters, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not any such Indemnitee is a party to such claim, action, suit or
proceeding), unless (1) such settlement, compromise or consent includes an
unconditional release of all of the Indemnitees from all liability arising out
of such claim, action, suit or proceeding and (2) the entire settlement amount
and all costs of settlement and all related costs are borne by the Company.
(b) The Company hereby expressly and irrevocably waives any and all rights
and objections which it may have against any Indemnitee in respect of any
liabilities arising out of, or relating to, this Agreement or the offering
contemplated by this Agreement, except to the extent such liabilities are
determined, by a final order of a court of competent jurisdiction, to be the
direct and primary result from the Underwriters' gross negligence or willful
misconduct. Each Underwriter, individually and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company, any such director or officer of the Company, or any such controlling
person of the Company may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) are determined, by a final order of a court of competent
jurisdiction, to be the direct and primary result of (1) any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or any Application or (2)
the omission or the alleged omission to state therein a material fact required
to be stated in the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or any Application, 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 is
determined by such court to have been made in reliance upon, and in conformity
with, written information furnished to the Company by such Underwriter
expressly for use therein; and, subject to the limitation set forth immediately
preceding this clause, will reimburse, as incurred, any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating, defending against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action. This indemnity agreement will be in addition to any liability which
such Underwriter may otherwise have. The Underwriters will not, without the
prior written consent of the Company, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not any such Indemnitee is a party to such claim, action, suit or
proceeding), unless (1) such settlement, compromise or consent includes an
unconditional release of all of the Indemnitees from all liability arising out
of such claim, action, suit or proceeding and (2) the entire settlement amount
and all costs of settlement and all related costs are borne by the
Underwriters.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action (including any governmental
investigation), such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party
24
25
under this Section 8, notify the indemnifying party of the commencement of such
action; 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 this Section 8 and will not relieve it from any liability under this
Section 8 except to the extent the indemnifying party is actually prejudiced by
the failure to give such notice. In case any such action is brought against
any indemnified party, and it notifies the 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; provided, however, that if the
parties to any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party or any officers, directors or
controlling persons of such indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnifying party
shall not have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (1) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, which counsel shall be designated by
you in the case of indemnification under paragraph (a) of this Section 8 and by
us in the case of indemnification under paragraph (b) of this Section 8,
representing the indemnified parties under such paragraphs (a) or (b), as the
case may be, who are parties to such action or actions) or (2) the indemnifying
party does not promptly retain counsel reasonably satisfactory to the
indemnified party or (3) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the
written consent of the indemnifying party.
(d) If the indemnity agreement provided for in the preceding paragraphs of
this Section 8 is unavailable or insufficient, for any reason, to hold harmless
an indemnified party in respect of any losses, claims, damages or liabilities
(or actions in respect thereof), each indemnifying party, in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (1) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from
the offering of the Securities or (2) if the allocation provided
25
26
by the foregoing clause (1) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total proceeds from
the offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth on the cover page of the Prospectus. The relative fault
of the parties 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 or the Underwriters, the parties' relative intents, knowledge,
access to information and opportunity to correct or prevent such statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Company and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to above in this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Underwriter shall
be obligated to make contributions under this paragraph (d) that in the
aggregate exceed the total public offering price of the securities purchased by
such Underwriter under this Agreement, less the aggregate amount of any damages
that such Underwriter has otherwise been required to pay in respect of such
untrue or alleged untrue statement or omission or alleged omission, and 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 to
contribute under this paragraph (d) are individual in proportion to their
respective underwriting obligations and not joint. For purposes of this
paragraph (d), each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company.
9. Default of Underwriters. If one of the Underwriters shall fail or refuse
to purchase Firm Debentures or Option Debentures under this Agreement and if
arrangements satisfactory to the non-defaulting Underwriter are not made within
36 hours after such default for the purchase by other persons (who may include
the non-defaulting Underwriter) of the Debentures with respect to which such
default occurs, this Agreement will terminate without liability on the part of
any non-defaulting Underwriter or the Company other than as provided in Section
10 of this Agreement. In any such case which does not result in the
termination of this Agreement, the non-defaulting Underwriter shall have the
right to postpone the Firm Closing Date or the Option Closing Date, as the case
may be, established as provided in Section 3 of this Agreement for not more
than seven business days in order that any necessary changes may be made in the
26
27
Registration Statement, the Prospectus, the other documents and the
arrangements for the purchase and delivery of the Firm Debentures or Option
Debentures, as the case may be. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
10. Survival. The respective representations, warranties, agreements,
covenants, indemnities, contribution agreements and other statements of the
Company and the several Underwriters set forth in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement shall remain in
full force and effect, regardless of (1) any investigation made by or on behalf
of the Company, any of its officers or directors, any Underwriter or any
controlling person referred to in Section 8 of this Agreement and (2) delivery
of and payment for the Securities. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6 and 8 of this
Agreement shall remain in full force and effect, regardless of any termination
or cancellation of this Agreement.
11. Termination.
(a) This Agreement may be terminated with respect to the Firm Debentures
or any Option Debentures in your sole discretion by notice to the Company given
prior to the Firm Closing Date or the related Option Closing Date,
respectively, in the event that the Company shall have failed, refused or been
unable to perform all obligations on its part to be performed under this
Agreement on or before the Firm Closing Date or the Option Closing Date, as
applicable, or if any of the conditions in Section 7 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, or if, at or
prior to the Firm Closing Date or such Option Closing Date, respectively:
(1) the Company or any of its subsidiaries shall have, in your sole
judgment, sustained any material loss or interference with their respective
businesses or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor dispute or
any legal or governmental proceeding or there shall have been any material
adverse change, or any development involving a prospective material adverse
change (including without limitation a change in management or control of the
Company), in the condition (financial or otherwise), management, business,
net worth, cash flows or results of operations of the Company or any of its
subsidiaries, except in each case as described in or contemplated by the
Prospectus (exclusive of any amendment or supplement thereto);
(2) trading in the Common Shares shall have been suspended by the
Commission or The Nasdaq National Market or trading in securities generally
on the New York Stock Exchange or The Nasdaq National Market shall have been
suspended or minimum or maximum prices shall have been established on such
exchange or market system;
27
28
(3) a banking moratorium shall have been declared by Michigan, New York
or United States authorities;
(4) there shall have been (A) an outbreak or escalation of hostilities
between the United States and any foreign power, (B) an outbreak or
escalation of any other insurrection or armed conflict involving the United
States or (C) any other calamity or crisis or material adverse change in the
general economic, political or financial conditions having an effect on the
U.S. financial markets that, in your sole judgment, makes it impractical or
inadvisable to proceed with the public offering or the delivery of the
Securities as contemplated by the Registration Statement, as amended as of
the date of this Agreement;
(5) the shall have been enacted, published, decreed or promulgated any
federal, state or local statute, regulation, rule or order of any court or
other governmental authority which in your opinion materially and adversely
affects or will materially and adversely affect the business or operations of
the Company; or
(6) any actions shall have been taken by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in
your opinion has a material adverse effect on the securities markets in the
United States.
(b) Termination of this Agreement pursuant to this Section 11 shall be
without liability of any party to any other party except as provided in Section
6 (including the provisions of the Letter of Intent which are incorporated in
this Agreement) and Section 8 of this Agreement.
12. Information Supplied by Underwriters. The statements set forth in the
last paragraph on the front cover page and under the heading "Underwriting" in
any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter to the Company for the purposes of Section 8 of this Agreement.
The Underwriters confirm that such statements (to such extent) are correct.
13. Notices. All communications under this Agreement shall be in writing
and delivered or sent by mail, telex or facsimile transmission and confirmed in
writing as follows:
(a) to the Underwriters: to Roney & Co., One Griswold, Detroit, Michigan
48226, Attention: Dan B. French, Jr.; and to The Ohio Company, 155 East Broad
Street, 20th Floor, Columbus, Ohio 43215, Attention: Curtis D. Milner.
(b) To the Company, 950 E. Witcomb Avenue, Madison Heights, Michigan
48071, Attention: President.
14. Successors. This Agreement shall inure to the benefit of and shall be
binding upon the Underwriters and the Company, and their respective successors,
assigns and legal
28
29
representatives, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
contained in this Agreement, this Agreement and all conditions and provisions
of this Agreement being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company contained in Section 8 of this Agreement shall
also be for the benefit of the Indemnitees, including, without limitation, any
person or persons who control any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act and (ii) the indemnities of the
Underwriters contained in Section 8 of this Agreement shall also be for the
benefit of the directors of the Company, the officers of the Company who have
signed the Registration Statement and any person or persons who control the
Company within the meaning of Section 5 of the Act or Section 20 of the
Exchange Act. No purchaser of Securities from any Underwriter shall be deemed
a successor because of such purchase.
15. Applicable Law. The validity and interpretation of this Agreement, and
the terms and conditions set forth in this Agreement, shall be governed by and
construed in accordance with the laws of the State of Michigan, without giving
effect to any provisions relating to conflicts of laws.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Entire Agreement. This Agreement and the Letter of Intent provisions
which are incorporated in this Agreement are the parties' entire agreement
concerning its subject matter, and supersede all prior undertakings and
agreements.
If the foregoing correctly sets forth our understanding, please indicate your
acceptance of this Agreement in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company and
each of the Underwriters.
Very truly yours,
CODE-ALARM, INC.
By:
___________________________________________
Rand W. Mueller, President
29
30
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written:
RONEY & CO.
By: ___________________
Name: _________________
Title: ________________
THE OHIO COMPANY
By: ___________________
Name: _________________
Title: ________________
30
31
SCHEDULE 1
SUBSIDIARIES
Name Jurisdiction of
- ---- Incorporation
---------------
31
32
SCHEDULE 2
SUBSIDIARY OWNERSHIP
32
33
SCHEDULE 3
Principal Amount of
Firm Debentures
Underwriter to be Purchased
- ----------- -------------------
RONEY & CO.
THE OHIO COMPANY
$10,000,000
===========
33