DRAFT OF 3/13/98
2,000,000 CONVERTIBLE TRUST PREFERRED SECURITIES*
DURA AUTOMOTIVE SYSTEMS CAPITAL TRUST
[______]% Convertible Trust Preferred Securities
(Liquidation Preference $25 per Convertible
Trust Preferred Security)
Guaranteed by and Convertible
into Class A Common Stock of
DURA AUTOMOTIVE SYSTEMS, INC.
UNDERWRITING AGREEMENT
March ___, 1998
ROBERT W. BAIRD & CO. INCORPORATED
PIPER JAFFRAY INC.
c/o Robert W. Baird & Co. Incorporated
227 West Monroe, Suite 2100
Chicago, Illinois 60606
Ladies and Gentlemen:
1. INTRODUCTORY.
Dura Automotive Systems Capital Trust (the "Trust"), a statutory business
trust created under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Section 3801
et seq.), proposes, upon the terms and conditions set forth herein, to issue
and sell 2,000,000 [____]% Convertible Trust Preferred Securities, liquidation
preference $25 per security (the "Firm Preferred Securities"), to the several
Underwriters named in Schedule I hereto (the "Underwriters"), who are acting
severally and not jointly. The Trust also proposes, upon the terms and
conditions set forth herein and
_______________________________
* Plus an option to acquire up to an aggregate of 300,000 additional _______
Convertible Preferred Trust Securities that may be issued to cover over-
allotments.
solely for the purpose of covering over-allotments, to issue and sell to the
Underwriters up to an additional 300,000 [____]% Convertible Trust Preferred
Securities, liquidation preference $25 per security (the "Additional
Preferred Securities"). The Firm Preferred Securities and the Additional
Preferred Securities are hereinafter collectively referred to as the
"Preferred Securities."
Each Preferred Security is convertible at the option of the holder
thereof into shares of Class A Common Stock, par value $.01 per share (the
"Conversion Shares"), of Dura Automotive Systems, Inc. (the "Company" and
together with the Trust, the "Offerors") at a conversion rate of [_____]
Conversion Shares for each Preferred Security, subject to adjustment in
certain circumstances. The Preferred Securities will be guaranteed by the
Company, to the extent set forth in the Prospectus (as defined below), with
respect to distributions and amounts payable upon liquidation or redemption
(the "Preferred Securities Guarantee") pursuant to the Preferred Securities
Guarantee Agreement (the "Preferred Securities Guarantee Agreement") to be
dated as of the First Closing Date (as defined below) executed and delivered
by the Company and _______________________ (the "Guarantee Trustee"), a
_____________ banking corporation, not in its individual capacity but solely
as trustee, for the benefit of the holders from time to time of the Preferred
Securities. The entire proceeds from the sale of the Preferred Securities
will be combined with the entire proceeds from the sale by the Trust to the
Company of its common securities (the "Common Securities") which will be
guaranteed by the Company, to the extent set forth in the Prospectus, with
respect to distributions and amounts payable upon liquidation or redemption
(the "Common Securities Guarantee" and, together with the Preferred
Securities Guarantee, the "Guarantees") pursuant to the Common Securities
Guarantee Agreement (the "Common Securities Guarantee Agreement" and,
together with the Preferred Securities Guarantee Agreement, the "Guarantee
Agreements"), to be dated as of the Closing Date, executed and delivered by
the Company for the benefit of the holders from time to time of the Common
Securities, and will be used by the Trust to purchase the [______]%
Convertible Subordinated Debentures due 2028 (the "Convertible Debentures")
issued by the Company. The Preferred Securities and the Common Securities
will be issued pursuant to the Amended and Restated Trust Agreement of the
Trust, to be dated as of the Closing Date (the "Trust Agreement"), among the
Company, as Sponsor, _________________________ (Delaware), as Delaware
trustee (the "Delaware Trustee"), and _________________________, as
administrative trustees (the "Administrative Trustees," and together with the
Delaware Trustee, the "Trustees"), and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The Convertible
Debentures will be issued pursuant to an Indenture, to be dated as of the
Closing Date (the "Indenture"), between the Company and
________________________, as trustee (the "Indenture Trustee"). The
Preferred Securities, the Preferred Securities Guarantee, the Convertible
Debentures and the Conversion Shares are collectively referred to herein as
the "Securities."
The Offerors wish to confirm as follows their agreement with you in
connection with the several purchases of the Preferred Securities by the
Underwriters.
2
2. REPRESENTATIONS AND WARRANTIES OF THE OFFERORS. The Company and the
Trust, jointly and severally, represent and warrant to, and agree with, each
Underwriter, and shall be deemed to represent and warrant to each Underwriter
on each Closing Date (as hereinafter defined), that:
(a) The Offerors have prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions
of the Securities Act of 1933 as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Securities Act"), a
registration statement on Form S-3 (File No. 333-47273) under the
Securities Act (the "Registration Statement"), including a prospectus
subject to completion relating to the Securities. The term "Registration
Statement" as used in this Agreement means the registration statement
(including all financial schedules and exhibits), as amended at the time
it becomes effective, or, if the Registration Statement became effective
prior to the execution of this Agreement, as supplemented or amended prior
to the execution of this Agreement. If it is contemplated, at the time
this Agreement is executed, that a post-effective amendment to the
Registration Statement will be filed and must be declared effective before
the offering of the Preferred Securities may commence, the term
"Registration Statement" as used in this Agreement means the Registration
Statement as amended by said post-effective amendment. If an additional
registration statement is prepared and filed with the Commission in
accordance with Rule 462(b) under the Securities Act (an "Additional
Registration Statement"), the term "Registration Statement" as used in
this Agreement includes the Additional Registration Statement. The term
"Prospectus" as used in this Agreement means the prospectus in the form
included in the Registration Statement as supplemented by the addition of
Rule 430A information contained in the prospectus filed with the
Commission pursuant to Rule 424(b) under the Securities Act. The term
"Preliminary Prospectus" as used in this Agreement means the prospectus
subject to completion relating to the Preferred Securities in the form
included in the registration statement at the time of the initial filing
of the registration statement with the Commission, and as such prospectus
shall have been amended from time to time prior to the date of the
Prospectus. Any reference in this Agreement to the registration
statement, the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Form S-3 under the
Securities Act, as of the date of the registration statement, the
Registration Statement, such Preliminary Prospectus or the Prospectus, as
the case may be, and any reference to any amendment or supplement to the
registration statement, the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") which, upon filing, are incorporated by
reference therein, as required by Form S-3. As used herein, the term
"Incorporated Documents" means the documents which at the time are
incorporated by reference in the registration statement, the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto.
3
(b) Each of the Offerors and the transactions contemplated by this
Agreement meet the requirements for using Form S-3 under the Securities
Act.
(c) The Incorporated Documents heretofore filed, when they were
filed (or, if any amendment with respect to any such document was filed,
when such amendment was filed), conformed in all material respects with
the requirements of the Exchange Act and the rules and regulations
thereunder, any further Incorporated Documents so filed will, when they
are filed, conform in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder; no such document
when it was filed (or, if an amendment with respect to any such document
was filed, when such amendment was filed), contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and no such further document, when it is filed, will contain
an untrue statement of a material fact or will omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading.
(d) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the
Offerors' knowledge, threatened by the Commission.
(e) (i) Each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Act and (iii) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
set forth in this paragraph (e) do not apply to statements or omissions in
the Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter pursuant to Section 3 hereof.
(f) The Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as it is currently being conducted
and to own, lease and operate its properties, and each is duly qualified
and is in good standing as a foreign corporation authorized to do business
in each jurisdiction in which the nature of its business or its ownership
or leasing of
4
property 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.
(g) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Registration Statement and the Prospectus, and any amendment or supplement
thereto, and to enter into and perform its obligations under this
Agreement, the Preferred Securities, the Common Securities and the
Declaration; the Trust is duly qualified to transact business in each
jurisdiction in which such qualification is necessary, except to the
extent that the failure to so qualify would not have a material adverse
effect on the Trust; and the Trust is not a party to or otherwise bound by
any agreement, other than those described in the Prospectus, and any
amendment or supplement thereto.
(h) All of the outstanding shares of capital stock of, or other
ownership interests in, each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable, and,
except as otherwise set forth in the Prospectus and except for any liens
pursuant to the Bank Credit Agreement (as defined in the Prospectus), are
owned by the Company, free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature.
(i) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable
and, as of the Closing Date, will not be subject to any preemptive or
similar rights.
(j) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company in
accordance with the terms of the Declaration and against payment therefore
as described in the Prospectus, will be validly issued undivided
beneficial interests in the assets of the Trust; the issuance of the
Common Securities is not subject to preemptive or other similar rights;
and at the First Closing Date, all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(k) The Declaration has been duly authorized by the Company and,
when validly executed and delivered by the Company and the Administrative
Trustees, and assuming the due authorization, execution and delivery of
the Declaration by the Delaware Trustee, the Declaration will be a valid
and legally binding obligation of the Company and the Administrative
Trustees, enforceable against the Company and the Administrative Trustees
in accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general
5
principles of equity regardless of whether enforcement is considered a
proceeding in equity or at law; and the Declaration has been duly
qualified under the Trust Indenture Act of 1939 (the "1939 Act") and
conforms to the description thereof in the Registration Statement and
the Prospectus and any amendment or supplement thereto.
(l) The Administrative Trustees of the Trust are officers of the
Company and have been duly authorized by the Company to execute and
deliver the Declaration.
(m) The Preferred Securities Guarantee Agreement has been duly and
validly authorized by the Company and, when validly executed and delivered
by the Company, and assuming due authorization, execution and delivery of
the Preferred Securities Guarantee Agreement by the Guarantee Trustee,
will constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to the fraudulent transfers),
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity regardless of whether enforcement is
considered a proceeding in equity or at law; and the Preferred Securities
Guarantee Agreement has been duly qualified under the 1939 Act and
conforms to the description thereof in the Registration Statement and the
Prospectus and any amendment or supplement thereto.
(n) The Preferred Securities have been duly authorized by the
Declaration and, when authenticated in the manner provided for in the
Declaration and issued and delivered pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued and
(subject to the terms of the Declaration) fully paid and nonassessable
undivided beneficial interests in the assets of the Trust; the issuance of
the Preferred Securities is not subject to preemptive or other similar
rights; and holders of Preferred Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit incorporated under the General Corporation Law of
the State of Delaware and the Preferred Securities have been registered
under the Exchange Act and authorized for listing on the Nasdaq National
Market, subject only to official notice of issuance.
(o) The Indenture has been duly authorized by the Company, and, when
validly executed and delivered by the Company, and assuming the due
authorization, execution and delivery of the Indenture by the Indenture
Trustee, will be a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity regardless of whether enforcement is
considered a proceeding in equity or at law; and the Indenture has
6
been (or will have been) duly qualified under the 1939 Act and conforms
to the description thereof in the Registration Statement and the
Prospectus, and any amendment or supplement thereto.
(p) The Convertible Debentures have been duly authorized by the
Company, and when validly executed, authenticated, issued and delivered in
the manner provided for in the Indenture and sold and paid for as provided
in this Agreement, the Convertible Debentures will be valid and binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity regardless of whether enforcement is
considered a proceeding in equity or at law; and the Indenture conforms to
the description thereof in the Registration Statement and the Prospectus,
and any amendment or supplement thereto.
(q) The Company's obligations under the Preferred Security Guarantee
are (i) subordinated and junior in right of payment to all other
liabilities of the Company, (ii) pari passu with the most senior preferred
stock of the Company, if any, and with any guarantee now or hereafter
entered into by the Company in respect of any preferred or preference
stock of any affiliate of the Company and (iii) senior to the Common
Stock.
(r) The Convertible Debentures are subordinate and junior in right
of payment to all existing and future Senior Debt (as defined in the
Indenture) of the Company.
(s) The authorized capital stock of the Company, including the Class
A Common Stock and Class B Common Stock (collectively, the "Common
Stock"), the Preferred Securities, the Common Securities, the Conversion
Shares, the Convertible Debentures, the Declaration, the Preferred
Securities Guarantee Agreement and the Indenture conform in all material
respects to the descriptions thereof in the Prospectus under the captions
"Description of the Preferred Securities", "Description of the Guarantee",
"Description of the Debentures", "Relationship Among the Preferred
Securities, the Debentures and the Guarantee" and "Description of Capital
Stock".
(t) Neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws; the Trust is not in violation of the
Declaration or its Certificate of Trust filed with the State of Delaware
on March 2, 1998; and neither the Company, any subsidiary or the Trust is
in default in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture or instrument material
to the conduct of the business of the Company and its subsidiaries, taken
as a whole, to which the Company, any of its subsidiaries or the Trust is
a party or by which the Company, any of
7
its subsidiaries or the Trust or their respective property is bound,
which default could reasonably be expected to result in a material
adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole, or of the Trust, as the case may be.
(u) The execution and delivery of, and the performance by the
Company and the Trust of their respective obligations under this
Agreement, compliance by the Company and the Trust with all the provisions
hereof and the consummation of the transactions contemplated hereby will
not require any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental body
(except as such may be required under the Act, the Exchange Act, or the
securities or Blue Sky laws of the various states or the by-laws or rules
of the NASD) and will not conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the charter or by-laws of
the Company or any of its subsidiaries or the Trust or any agreement,
indenture or other instrument to which the Company, any of its
subsidiaries or the Trust is a party or by which the Company, any of its
subsidiaries or the Trust, or their respective property is bound, or
violate or conflict with any laws, administrative regulations or rulings
or court decrees applicable to the Company, any of its subsidiaries, the
Trust or their respective property, other than conflicts or breaches that,
individually or in the aggregate, would not reasonably be expected to
result in a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries,
taken as a whole, or of the Trust, as the case may be, or materially
impair the ability of the Company or the Trust to perform its obligations
under this Agreement.
(v) Except as otherwise set forth in the Prospectus, there are no
material legal or governmental proceedings pending to which the Company,
any of its subsidiaries or the Trust is a party or of which any of their
respective property is the subject, and, to the best of the Offerors'
knowledge, no such proceedings are threatened or contemplated. No
contract or document of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement is not so described or filed as required.
(w) Except as otherwise set forth in the Prospectus, neither the
Company nor any of its subsidiaries has violated any foreign, federal,
state or local law or regulation relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), nor any federal
or state law relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws, nor
any provisions of the Employee Retirement Income Security Act or the rules
and regulations promulgated thereunder, which in any such case could
reasonably be expected to result in any material adverse change in the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
8
(x) The Company and each of its subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease and operate
its respective properties and to conduct its business, except for such
permits, licenses, franchises and authorizations the absence of which,
individually or in the aggregate, would not reasonably be expected to have
a material adverse effect on the business, prospects, financial condition
or results of operations of the Company and its subsidiaries, taken as a
whole; and the Company and each of its subsidiaries has fulfilled and
performed all of its material obligations with respect to such permits and
no event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit.
(y) Except as otherwise set forth in the Prospectus or such as are
not material to the business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole, the
Company and each of its subsidiaries has good and marketable title, free
and clear of all liens, claims, encumbrances and restrictions except liens
for taxes not yet due and payable and liens that do not materially detract
from the value thereof or materially impair its use in the business of the
Company or such subsidiary, to all property and assets described in the
Registration Statement as being owned by it. No default has occurred or is
continuing under any material lease to which the Company or any of its
subsidiaries is a party which might result in any material adverse change
in the business, prospects, financial condition or results of operation of
the Company and its subsidiaries, taken as a whole.
(z) The Company and each of its subsidiaries maintain reasonably
adequate insurance.
(aa) To the Company's knowledge Arthur Andersen LLP are independent
public accountants with respect to the Company as required by the Act.
(bb) The financial statements, together with related schedules and
notes forming part of the Registration Statement and the Prospectus (and
any amendment or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in financial
position of the Company and its subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the respective
periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and
data set forth in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) are, in all material respects, accurately
9
presented and prepared on a basis consistent with such financial
statements and the books and records of the Company.
(cc) Neither the Company nor the Trust is, and upon the issuance and
sale of the Preferred Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
neither will be, an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
(dd) Except as otherwise set forth in the Prospectus, no holder of
any security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company.
(ee) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
3. INFORMATION FURNISHED BY THE UNDERWRITERS. The information set forth
in the last paragraph on the outside front cover page of the Prospectus
concerning the terms of the offering by the Underwriters, the paragraphs on the
inside front cover page of the Prospectus relating to stabilization practices
and passive market making, and the paragraphs relating to stabilization
practices and passive market making and the concession and reallowance amounts
appearing under the caption "Underwriting" in the Prospectus constitute all of
the information furnished to the Company by and on behalf of the Underwriters
for use in connection with the preparation of the Registration Statement and
the Prospectus, as such information is referred to in this Agreement.
4. PURCHASE, SALE AND DELIVERY OF PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set
forth, the Trust agrees to sell to the Underwriters identified in Schedule
I annexed hereto an aggregate of 2,000,000 Firm Preferred Securities, and
each of the Underwriters agrees, severally and not jointly, to purchase
from the Trust the number of Firm Preferred Securities as hereinafter set
forth at the purchase price of $[_____] per Firm Preferred Security, plus
accrued distributions, if any from _____________, 1998. The obligation of
each Underwriter to the Company shall be to purchase from the Company that
number of full Firm Preferred Securities which bears the same proportion
to the number of Firm Preferred Shares to be sold by the Trust as the
number of shares set forth opposite the name of such Underwriter in
Schedule I annexed hereto bears to the total number of Firm Preferred
Shares to be purchased by all of the Underwriters under this Agreement.
(b) The Company agrees that, in view of the fact that the proceeds
of the sale of the Preferred Securities will be invested in the
Convertible Debentures, it shall pay to
10
the Underwriters as compensation ("Underwriters' Compensation") for
their arranging the investment of the proceeds therein, on the Closing
Date, $[______________] per Firm Preferred Security. The Underwriters
shall inform the Company in writing on the First Closing Date of the
aggregate number of Firm Preferred Securities so sold.
(c) On the First Closing Date (as hereinafter defined), the Trust
will deliver to the Underwriters, at the offices of Robert W. Baird & Co.
Incorporated, 777 East Wisconsin Avenue, Milwaukee, Wisconsin 53202, or
through the facilities of The Depository Trust Company, for the accounts
of the several Underwriters, certificates representing the Firm Preferred
Shares to be sold by it against payment in Milwaukee, Wisconsin of the
purchase price therefor by wire transfer of immediately available funds to
the Trust with respect to the Firm Preferred Shares being sold by the
Trust. As referred to in this Agreement, the "First Closing Date" shall
be on the third full business day after the date of the Prospectus, at
9:00 a.m., Milwaukee, Wisconsin time, or at such other date or time not
later than ten full business days after the date of the Prospectus as the
Underwriters and the Company may agree. The certificates for the Firm
Preferred Securities to be so delivered will be in denominations and
registered in such names as the Underwriters request by notice to the
Trust, prior to the First Closing Date, and such certificates will be made
available for checking and packaging at 9:00 a.m., Milwaukee, Wisconsin
time on the first full business day preceding the First Closing Date at a
location to be designated by the Underwriters.
(d) In addition, on the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions
herein set forth, the Trust hereby agrees to sell to the Underwriters, and
the Underwriters, severally and not jointly, shall have the right at any
time within thirty days after the date of the Prospectus to purchase up to
an aggregate of 300,000 Additional Preferred Securities from the Trust at
the purchase price per share to be paid for the Firm Preferred Securities,
for use solely in covering any over-allotments made by the Underwriters in
the sale and distribution of the Firm Preferred Securities. The option
granted hereunder may be exercised on one occasion upon written notice by
the Underwriters to the Offerors, within thirty days after the date of the
Prospectus setting forth the aggregate number of Additional Preferred
Securities to be purchased by the Underwriters and sold by the Trust, the
names and denominations in which the certificates are to be registered and
the date and place at which such certificates will be delivered. Such
date of delivery (the "Second Closing Date") shall be determined by the
Underwriters, provided that the Second Closing Date, which may be the same
as the First Closing Date, shall not be earlier than the First Closing
Date and, if after the First Closing Date, shall not be earlier than three
nor later than ten full business days after delivery of such notice to
exercise. As referred to in this Agreement, "Closing Date" shall mean
either the First Closing Date or the Second Closing Date. Certificates
for the Additional Preferred Securities will be made available for
checking and packaging at 9:00 a.m., Milwaukee, Wisconsin time, on the
first full business day preceding the Second Closing Date at a location to
be designated by the
11
Underwriters. The manner of payment for and delivery of (including the
denominations of and the names in which certificates are to be
registered) the Additional Preferred Securities shall be the same as for
the Firm Preferred Securities. If any Additional Preferred Securities
are to be purchased, each Underwriter agrees, severally and not jointly,
to purchase the number of Additional Preferred Securities that bears the
same proportion to the total number of Additional Preferred Securities
to be purchased as the number of Firm Preferred Securities in Schedule I
annexed hereto bears to the total number of Firm Preferred Securities.
5. COVENANTS OF THE COMPANY. The Company and the Trust, jointly and
severally, covenant and agree with the several Underwriters:
(a) To use their reasonable best efforts to cause the Registration
Statement to become effective at the earliest possible time.
(b) To advise you promptly after obtaining knowledge thereof and, if
requested by you, to confirm such advice in writing, (i) when the
Registration Statement has become effective and when any post-effective
amendment to it becomes effective, (ii) of any request by the Commission
for amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the
Preferred Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, and (iv) of the happening
of any event during the period referred to in paragraph (e) below which
makes any statement of a material fact made in the Registration Statement
or the Prospectus untrue or which requires the making of any additions to
or changes in the Registration Statement or the Prospectus in order to
make the statements therein not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, the Offerors will make every reasonable effort to
obtain the withdrawal or lifting of such order at the earliest possible
time.
(c) To furnish to you, without charge, three copies of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, and to furnish to you and each
Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as you may reasonably request.
(d) Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
to make any amendment or supplement to the Prospectus, of which you shall
not previously have been advised or to which you shall reasonably object;
and, at any time prior to the termination of the offering of the Preferred
Securities, to prepare and file with the Commission, promptly upon your
reasonable request, any amendment to the Registration Statement or
12
supplement to the Prospectus which may be necessary or advisable in
connection with the distribution of the Preferred Securities by you, and
to use its best efforts to cause the same to become promptly effective.
(e) Promptly after the Registration Statement becomes effective, and
from time to time thereafter at any time prior to the termination of the
offering of the Preferred Securities if in the opinion of counsel for the
Underwriters a prospectus is required by law to be delivered in connection
with sales by an Underwriter or a dealer, to furnish to each Underwriter
and dealer as many copies of the Prospectus (and of any amendment or
supplement to the Prospectus) as such Underwriter or dealer may reasonably
request.
(f) If during the period specified in paragraph (e) any event shall
occur as a result of which, in the opinion of counsel for the Underwriters
it becomes necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with any law,
forthwith to prepare and file with the Commission an appropriate amendment
or supplement to the Prospectus so that the statements in the Prospectus,
as so amended or supplemented, will not in the light of the circumstances
when it is so delivered, be misleading, or so that the Prospectus will
comply with law, and to furnish to each Underwriter and to such dealers as
you shall specify, such number of copies thereof as such Underwriter or
dealers may reasonably request.
(g) Prior to any public offering of the Preferred Securities, to
cooperate with you and counsel for the Underwriters in connection with the
registration or qualification of the Preferred Securities for offer and
sale by the several Underwriters and by dealers under the state securities
or Blue Sky laws of such jurisdictions as you may reasonably request, to
continue such qualification in effect so long as required for distribution
of the Preferred Securities and to file such other documents as may be
necessary in order to effect such registration or qualification; PROVIDED,
HOWEVER, that neither the Company nor any of its subsidiaries shall be
obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise
so subject.
(h) To make generally available to the Trust's security holders as
soon as reasonably practicable an earnings statement of the Company
covering a period of at least twelve months after the effective date of
the Registration Statement (but in no event commencing later than 90 days
after such date) which shall satisfy the provisions of Section 11(a) of
the Act.
(i) During the period of three years after the date of this
Agreement, the Company will furnish to you, (i) as soon as available a
copy of each report or other
13
publicly available information of the Company mailed to the holders of
Common Stock or filed with the Commission and such other publicly
available information concerning the Company and its subsidiaries as you
may reasonably request, and (ii) the Trust will furnish to you, upon
your request, a copy of each report of the Trust mailed to the holders
of Preferred Securities and Common Securities.
(j) To pay all costs, expenses, fees and taxes incident to (i) the
preparation, printing, filing and distribution under the Act of the
Registration Statement (including financial statements and exhibits), each
Preliminary Prospectus and all amendments and supplements to any of them
prior to or during the period specified in paragraph (e), (ii) the
printing and delivery of the Prospectus and all amendments or supplements
to it during the period specified in paragraph (e), (iii) the delivery of
this Agreement and all other agreements, memoranda, correspondence and
other documents delivered in connection with the offering of the Preferred
Securities (including in each case any reasonable disbursements of counsel
for the Underwriters relating to such delivery), (iv) the registration or
qualification of the Preferred Securities for offer and sale under the
securities or Blue Sky laws of the several states (including in each case
the reasonable fees and disbursements of counsel for the Underwriters
relating to such registration or qualification and memoranda relating
thereto), (v) filing fees relating to the clearance with the National
Association of Securities Dealers, Inc. ("NASD") in connection with the
offering, (vi) the listing of the Preferred Securities on the National
Association of Securities Dealers Automated Quotation System ("Nasdaq")
National Market System, (vii) furnishing such copies of the Registration
Statement, the Prospectus and all amendments and supplements thereto as
may be requested for use in connection with the offering or sale of the
Preferred Securities by the Underwriters or by dealers to whom Preferred
Securities may be sold and (viii) the performance by the Company of its
other obligations under this Agreement.
(k) As long as the Common Stock is registered under Section 12(g) of
the Exchange Act, to use its reasonable best efforts to maintain the
inclusion of the Common Stock in the Nasdaq National Market System (or on
a national securities exchange) for a period of three years after the
effective date of the Registration Statement.
(l) To use its reasonable best efforts to do and perform all things
reasonably required or reasonably necessary to be done and performed under
this Agreement by the Company prior to the First Closing Date or the
Second Closing Date, as the case may be, and to satisfy all conditions
precedent to the delivery of the Preferred Securities.
(m) The Trust will apply the net proceeds from the sale of the
Preferred Securities, and the Company will apply the net proceeds from the
sale of the Convertible Debentures, substantially in accordance with the
description set forth in the Prospectus under "Use of Proceeds".
14
(n) Each of the Trust and the Company agree, during the period
beginning on the date of this Agreement and continuing to and including
the date that is 45 days after the Closing Date, not to offer, sell,
contract to offer, sell or otherwise dispose of any preferred securities,
any preferred stock, any common stock or any other securities (including
any backup undertakings for such preferred stock or other securities) of
the Company or of the Trust, in each case, that are substantially similar
to the Preferred Securities, or any securities convertible into or
exchangeable for the Preferred Securities or such substantially similar
securities of either the Trust or the Company, without the prior written
consent of Robert W. Baird & Co. Incorporated.
(o) Except as stated in this Agreement and in the Preliminary
Prospectus and Prospectus, the Company has not taken, nor will it take,
directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price
of the Preferred Securities to facilitate the sale or resale of the
Preferred Securities.
(p) The Company will use its reasonable best efforts to have the
Preferred Securities listed on the Nasdaq National Market System. If the
Convertible Debentures are distributed on the occurrence of a Tax Event
(as defined in the Prospectus), the Company will use its best efforts to
have such Convertible Debentures listed on Nasdaq National Market System
or such other exchange where the Preferred Securities are listed.
6. PAYMENT OF EXPENSES. Whether or not the transactions contemplated
hereunder are consummated or this Agreement becomes effective, or if this
Agreement is terminated for any reason, the Company will pay the costs, fees
and expenses incurred by it and by the Trust in connection with the performance
by the Company and the Trust of their obligations hereunder. Such costs, fees
and expenses to be paid by the Company include, without limitation:
(a) All costs, fees and expenses (excluding the expenses incurred by
the Underwriters and the legal fees and disbursements of counsel for the
Underwriters, but including such fees and disbursements described in
subsection (b) of this Section 6) incurred in connection with the
performance of the Company's obligations hereunder, including without
limiting the generality of the foregoing: the registration fees related to
the filing of the Registration Statement with the Commission; the fees and
expenses related to the registration of the Preferred Securities under the
Exchange Act and the quotation of the Preferred Securities on Nasdaq
National Market or other national securities exchange; the fees and
expenses of the Company's counsel, accountants, transfer agent and
registrar; the fees and expenses of the Delaware Trustee, the Guarantee
Trustee and the Indenture Trustee; the costs and expenses incurred in
connection with the preparation, printing, shipping and delivery of the
Registration Statement, each Preliminary Prospectus and the Prospectus
(including all exhibits and financial statements and documents
incorporated by reference therein) and all agreements and supplements
provided for herein and this Agreement including, without limitation,
shipping expenses
15
via overnight delivery, and/or courier service to comply with applicable
prospectus delivery requirements; the costs and expenses incurred in
connection with the preparation of the Statement of Eligibility and
Qualification of each of the Guarantee Trustee and the Indenture
Trustee; and the costs and expenses associated with the production of
materials related to, and travel expenses incurred by the management of
the Offerors in connection with, the various meetings to be held between
the Offerors' management and prospective investors. The Underwriters
shall pay their own travel expenses related to such meetings.
(b) All registration fees and expenses, including reasonable legal
fees and disbursements of counsel for the Underwriters incurred in
connection with qualifying or registering all or any part of the Preferred
Securities for offer and sale under the Blue Sky Laws; provided, however,
that in no event shall such legal fees and disbursements exceed $3,000.
(c) All fees and expenses related to printing of the certificates
for the Preferred Securities, and all transfer taxes, if any, with respect
to the sale and delivery of the Preferred Securities.
7. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters under this Agreement shall be subject to the
accuracy of the representations and warranties on the part of the Offerors
herein set forth as of the date hereof and as of each Closing Date, to the
accuracy of the statements of the officers of the Company and the
Administrative Trustees of the Trust made pursuant to the provisions hereof, to
the performance by the Offerors of their obligations hereunder, and to the
following additional conditions, unless waived in writing by the Underwriters:
(a) The Registration Statement shall have been declared effective by
the Commission not later than 5:30 p.m., Washington, D. C. time, prior to
the date of this Agreement, or such later time as shall have been
consented to by you, which consent shall be deemed to have been given if
the Registration Statement shall have been declared effective on or before
the date and time requested in the acceleration request submitted on
behalf of the Underwriters pursuant to Rule 461 under the Act; all filings
required by Rules 424(b) and 430A under the Act shall have been timely
made; no stop order suspending the effectiveness of the Registration
Statement shall have been issued by the Commission or any state securities
commission nor, to the knowledge of the Company, shall any proceedings for
that purpose have been initiated or threatened; and any request of the
Commission or any state securities commission for inclusion of additional
information in the Registration Statement, or otherwise, shall have been
complied with to the reasonable satisfaction of the Underwriters.
(b) Since the dates as of which information is given in the
Registration Statement:
16
(i) there shall not have occurred any change or development
involving, or which could be expected to involve, a material adverse
effect, whether or not arising from transactions in the ordinary
course of business;
(ii) the Company shall not have sustained any loss or
interference from any labor dispute, strike, fire, flood, windstorm,
accident or other calamity (whether or not insured) or from any court
or governmental action, order or decree; and
(iii) there shall not have occurred any change in the long-
term debt or capital stock of the Company.
the effect of which on the Company, in any such case described in clause
(i), (ii) or (iii) above, is in the written opinion of the Underwriters so
material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Preferred Securities on
the terms and in the manner contemplated in the Registration Statement and
the Prospectus.
(c) The Underwriters shall not have advised the Company that the
Registration Statement or the Prospectus contains an untrue statement of
fact that, in the reasonable opinion of the Underwriters or counsel for
the Underwriters, is material, or omits to state a fact that, in the
reasonable opinion of the Underwriters or such counsel, is material and is
required to be stated therein or necessary to make the statements therein
not misleading.
(d) The Underwriters shall have received an opinion of Kirkland &
Ellis, counsel for the Company addressed to the Underwriters, and dated
the First Closing Date or the Second Closing Date, as the case may be, in
form and substance satisfactory to the Underwriters and counsel to the
Underwriters.
(e) The Underwriters shall have received an opinion of Richards,
Layton & Finger, special Delaware counsel to the Offerors, addressed to
the Underwriters and dated the First Closing Date or the Second Closing
Date, as the case may be, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act.
(ii) Under the Declaration and the Delaware Act, the Trust has
the trust power and authority to enter into and perform its
obligations under the Agreement, and under the Declaration and the
Delaware Act the Agreement has been duly authorized, executed and
delivered by all necessary trust action on the part of the Trust.
17
(iii) The Declaration constitutes a valid and binding
obligation of the Company and the Delaware Trustee, and is
enforceable against the Company and the Delaware Trustee, in
accordance with its terms subject to the effect upon the Declaration
of (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance or transfer and
other similar laws relating to or affecting the rights and remedies
of creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law), and
(iii) the effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
(iv) Under the Declaration and the Delaware Act, the Trust has
the trust power and authority to issue and sell and perform its
obligations under the Trust Securities and to purchase and hold the
Convertible Debentures.
(v) The Preferred Securities have been duly authorized for
issuance by the Declaration and, when issued, executed and
authenticated pursuant to the Declaration and delivered and paid for
in accordance with the Agreement, will be, subject to the
qualifications set forth herein, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust and will
entitle the holders thereof to the benefits of the Declaration
(subject to the terms of the Declaration), except to the extent that
the enforcement of the Declaration is subject to (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent conveyance or transfer and other similar laws relating to
or affecting the right and remedies of creditors generally,
(ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of applicable
public policy on the enforceability of provisions relating to
indemnification or contribution. The holders of the Preferred
Securities, as beneficial owners of the Trust, will be entitled to
the same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. Such counsel may note that
the holders of the Preferred Securities may be obligated, pursuant to
the Declaration, (A) to provide indemnity and/or security in
connection with and pay taxes or governmental charges arising from
transfers or exchanges of Preferred Security certificates and the
issuance of replacement Preferred Security certificates, and (B) to
provide security or indemnity in connection with requests of or
directions to the Institutional Trustee to exercise its rights and
powers under the Declaration.
(vi) The issuance and sale by the Trust of the Trust Securities,
the performance by the Trust of its obligations under the Trust
Securities and the Agreement and the purchase by the Trust of the
Convertible Debentures, do not violate the Declaration or any
applicable law of the State of Delaware or require any approval of
any governmental authority of the State of Delaware.
18
(vii) The holders of the Preferred Securities (other than
those holders who reside or are domiciled in the State of Delaware)
will have no liability for income taxes imposed by the State of
Delaware solely as a result of their participation in the Trust, and
the Trust will not be liable for any income tax imposed by the State
of Delaware or any political subdivision or taxing authority thereof.
(f) The Underwriters shall have received an opinion of Pepper,
Hamilton & Scheetz LLP, counsel to the Delaware Trustee and the Property
Trustee, addressed to the Underwriters and dated the First Closing Date or
the Second Closing Date, as the case may be, to the effect that:
(i) The Trust Company is duly incorporated and is validly
existing in good standing as a banking corporation with trust powers
under the laws of the State of ___________.
(ii) The Indenture Trustee has the requisite power and authority
to execute, deliver and perform its obligations under the Indenture,
and has taken all necessary corporate action to authorize the
execution, delivery and performance by it of the Indenture.
(iii) The Preferred Securities Guarantee Trustee has the
requisite power and authority to execute, deliver and perform its
obligations under the Guarantee Agreement, and has taken all
necessary corporate action to authorize the execution, delivery and
performance by it of the Guarantee Agreement.
(iv) The Institutional Trustee has the requisite power and
authority to execute and deliver the Trust Agreement, and has taken
all necessary corporate action to authorize the execution and
delivery of the Trust Agreement.
(v) Each of the Indenture and the Preferred Securities
Guarantee Agreement has been duly executed and delivered by the
Indenture Trustee and the Preferred Securities Guarantee Trustee,
respectively, and constitutes a legal, valid and binding obligation
of the Indenture Trustee and the Preferred Securities Guarantee
Trustee, respectively, enforceable against the Indenture Trustee and
the Preferred Securities Guarantee Trustee, respectively in
accordance with its respective terms, except that certain payment
obligations may be enforceable solely against the assets of the Trust
and except that such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, liquidation, fraudulent
conveyance and transfer or other similar laws affecting the
19
enforcement of creditors' rights generally, and by general principles
of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at
law), and by the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
(vi) The Convertible Subordinated Debentures delivered on the
date hereof have been duly authenticated by the Indenture Trustee in
accordance with the terms of the Indenture.
(g) The Underwriters shall have received an opinion of Gardner,
Carton & Douglas, counsel for the Underwriters, dated the First Closing
Date or the Second Closing Date, as the case may be, with respect to the
issuance and sale of the Preferred Securities by the Trust, the
Registration Statement and other related matters as the Underwriters may
require, and the Company shall have furnished to such counsel such
documents and shall have exhibited to them such papers and records as they
have reasonably requested for the purpose of enabling them to pass upon
such matters.
(h) The Underwriters shall have received on each Closing Date, a
certificate of each of the chief executive officer or the chief operating
officer and the chief financial officer of the Company and of one of the
Administrative Trustees of the Trust, to the effect that:
(i) The representations and warranties of the Company or the
Trust, as the case may be, set forth in Section 2 hereof are true and
correct as of the date of such certificate, and the Company or the
Trust, as the case may be, has complied with all the agreements and
satisfied all the conditions to be performed or satisfied by it at or
prior to the date of such certificate;
(ii) The Commission has not issued an order preventing or
suspending the use of the Prospectus or any Preliminary Prospectus or
any amendment or supplement thereto; no stop order suspending the
effectiveness of the Registration Statement has been issued; and to
the knowledge of the respective signatories, no proceedings for that
purpose have been initiated or are pending or contemplated under the
Act or under the Blue Sky Laws of any jurisdiction;
(iii) Each of the respective signatories has examined the
Registration Statement and the Prospectus, and any amendment or
supplement thereto, and such documents are true and correct in all
material respects; and
(iv) Since the date on which the Registration Statement was
declared effective with the Commission, there shall not have occurred
any change or development involving, or which could be expected to
involve, a material adverse
20
effect, whether or not arising from transactions in the ordinary
course of business, except as disclosed in the Prospectus and the
Registration Statement as heretofore amended or (but only if the
Underwriters expressly consent thereto in writing) as disclosed in
an amendment or supplement thereto filed with the Commission and
delivered to the Underwriters after the execution of this
Agreement; since such date and except as so disclosed or in the
ordinary course of business, the Company has not incurred any
liability or obligation, direct or indirect, or entered into any
transaction which is material to the Company; since such date and
except as so disclosed, there has not been any change in the
outstanding capital stock of the Company, or any change that is
material to the Company in the short-term debt or long-term debt of
the Company; since such date and except as so disclosed, the
Company has not acquired any of the Common Stock or other capital
stock of the Company nor has the Company declared or paid any
dividend, or made any other distribution, upon its outstanding
Common Stock payable to stockholders of record on a date prior to
such Closing Date; since such date and except as so disclosed, the
Company has not incurred any material contingent obligations, and
no material litigation is pending or threatened against the
Company; and, since such date and except as so disclosed, the
Company has not sustained any material loss or interference from
any strike, fire, flood, windstorm, accident or other calamity
(whether or not insured) or from any court or governmental action,
order or decree.
The delivery of the certificate provided for in this subsection (h)
shall be and constitute a representation and warranty of the Company and
the Trust as to the facts required in the immediately foregoing clauses
(i), (ii), (iii) and (iv) to be set forth in said certificate.
(i) At the time this Agreement is executed and also on each Closing
Date, there shall be delivered to the Underwriters a letter addressed to
the Underwriters from Arthur Andersen LLP, the Company's independent
accountants, the first letter to be dated the date of this Agreement, the
second letter to be dated the First Closing Date and the third letter (if
applicable) to be dated the Second Closing Date, which shall be in form
and substance satisfactory to the Underwriters and shall contain
information as of a date within five days of the date of such letter.
There shall not have been any change or decrease set forth in any of the
letters referred to in this subsection (i) which makes it impracticable or
inadvisable in the judgment of the Underwriters to proceed with the public
offering or purchase of the Preferred Securities as contemplated hereby.
(j) The underwriting terms and arrangements for the offering shall
have been cleared by the NASD, and the Preferred Securities shall have
been designated for inclusion on the Nasdaq National Market Security on
the Nasdaq Stock Market.
21
(k) Such further certificates and documents as the Underwriters may
reasonably request (including certificates of officers of the Company).
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
to the Underwriters and to Gardner, Carton & Douglas, counsel for the
Underwriters. The Company shall furnish the Underwriters with such manually
signed or conformed copies of such opinions, certificates, letters and
documents as the Underwriters may reasonably request.
If any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at either Closing Date is not so satisfied, this
Agreement at the election of the Underwriters will terminate upon notification
to the Company without liability on the part of any Underwriter, or the Company
except for expenses to be paid by the Company pursuant to Section 6 hereof and
except to the extent provided in Section 10 hereof.
8. MAINTAIN EFFECTIVENESS OF REGISTRATION STATEMENT. The Company will
use its reasonable efforts to prevent the issuance of any stop order suspending
the effectiveness of the Registration Statement, and, if such stop order is
issued, to obtain as soon as possible the lifting thereof.
9. INDEMNIFICATION.
(a) Each of the Company, Dura Operating Corp. and the Trust (for
purposes of this Section 9, the term Company shall include the Operating
Subsidiaries and the Trust) agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and
judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus
(as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any Preliminary Prospectus, or
caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any Underwriters furnished in writing to the Company by or on
behalf of any Underwriter through you expressly for use therein; PROVIDED,
HOWEVER, that the foregoing indemnity agreement with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages and
liabilities and judgments purchased Preferred Securities, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered,
at or prior to the
22
written confirmation of the sale of the Preferred Securities to such
person, and if the Prospectus (as so amended and supplemented) would
have cured the defect giving rise to such loss, claim, damage,
liability or judgment.
(b) In case any action shall be brought against any Underwriter or
any person controlling such Underwriter, based upon any Preliminary
Prospectus, the Registration Statement or the Prospectus or any amendment
or supplement thereto and with respect to which indemnity may be sought
against the Company, such Underwriter shall promptly notify the Company in
writing and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such indemnified party
and payment of all reasonable fees and expenses. Any Underwriter or any
such controlling person shall have the right to employ separate counsel in
any such action and participate in the defense thereof, but the reasonable
fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless (i) the employment of such
counsel shall have been specifically authorized in writing by the Company,
(ii) the Company shall have failed to assume the defense and employ
counsel or (iii) the named parties to any such action (including any
impleaded parties) include both such Underwriter or such controlling
person and the Company and such Underwriter or such controlling person
shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to
those available to the Company (in which case the Company shall not have
the right to assume the defense of such action on behalf of such
Underwriter or such controlling person, it being understood, however, that
the Company shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all such Underwriters and
controlling persons, which firm shall be designated in writing by
Robert W. Baird & Co. Incorporated and that all such reasonable fees and
expenses shall be reimbursed as they are incurred). The Company shall
not be liable for any settlement of any such action effected without its
written consent but if settled with the written consent of the Company,
the Company agrees to indemnify and hold harmless any Underwriter and any
such controlling person from and against any loss or liability by reason
of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, which consent shall not be unreasonably
withheld, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity reasonably could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Act or
23
Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter but only with reference
to information relating to such Underwriter furnished in writing by or
on behalf of such Underwriter through you expressly for use in the
Registration Statement, the Prospectus or any Preliminary Prospectus.
In case any action shall be brought against the Company, any of its
directors, any such officer or any person controlling the Company based
on the Registration Statement, the Prospectus or any preliminary
prospectus and in respect of which indemnity may be sought against any
Underwriter, the Underwriter shall have the rights and duties given to
the Company (except that if the Company shall have assumed the defense
thereof, such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of such
Underwriter), and the Company, its directors, any such officers and any
person controlling the Company shall have the rights and duties given to
the Underwriter, by Section 9(b) hereof.
(d) If the indemnification provided for in this Section 9 is
unavailable (other than as expressly provided above) to an indemnified
party in respect of any losses, claims, damages, liabilities or judgments
referred to therein, then each indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and
the Underwriters on the other hand from the offering of the Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Underwriters in connection
with the statements or omissions which resulted in such losses, claims,
damages, liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Underwriters shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of the Preferred
Securities, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Company and the Underwriters
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to
state a material fact relates to information supplied by the Company or
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately
24
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to
in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 9, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Preferred
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9(d) are several in proportion to the respective
number of Preferred Securities purchased by each of the Underwriters
hereunder and not joint.
10. DEFAULT OF UNDERWRITERS. It shall be a condition to the
obligations of each Underwriter to purchase the Preferred Securities in the
manner as described herein, that, except as hereinafter provided in this
section, each of the Underwriters shall purchase and pay for all the
Preferred Securities agreed to be purchased by such Underwriter hereunder
upon tender to the Underwriters of all such Preferred Securities in
accordance with the terms hereof. If any Underwriter or Underwriters default
in their obligations to purchase Preferred Securities hereunder on either the
First Closing Date or the Second Closing Date and the aggregate number of
Preferred Securities which such defaulting Underwriter or Underwriters agreed
but failed to purchase does not exceed ten percent (10%) of the total number
of Preferred Securities which the Underwriters are obligated to purchase on
such Closing Date, the Underwriters may make arrangements for the purchase of
such Preferred Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date the
nondefaulting Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Preferred Securities
which such defaulting Underwriters agreed but failed to purchase on such
Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of Preferred Securities with respect to which such default
or defaults occur is greater than ten percent (10%) of the total number of
Preferred Securities which the Underwriters are obligated to purchase on such
Closing Date, and arrangements satisfactory to the Underwriters for the
purchase of such Preferred Securities by other persons are not made within
thirty-six hours after such default, this Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Company, except
for the expenses to be paid by the Company pursuant to Section 7 hereof and
except to the extent provided in Section 10 hereof.
In the event that Preferred Securities to which a default relates are to
be purchased by the nondefaulting Underwriters or by another party or
parties, the Underwriters shall have the right to postpone the First Closing
Date or the Second Closing Date, as the case may be, for not more than seven
business days in order that the necessary changes in the Registration
Statement, Prospectus and any other documents, as well as any other
arrangements, may be effected. As
25
used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
11. EFFECTIVE DATE. This Agreement shall become effective upon the
execution and delivery of this Agreement by the parties hereto. Such
execution and delivery shall include an executed copy of this Agreement sent
by telecopier, facsimile transmission or other means of transmitting written
documents.
12. TERMINATION. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof, this Agreement may be
terminated by the Underwriters prior to or on the First Closing Date and the
over-allotment option from the Trust referred to in Section 4 hereof, if
exercised, may be canceled by the Underwriters at any time prior to or on the
Second Closing Date, if in the judgment of the Underwriters, payment for and
delivery of the Preferred Securities is rendered impracticable or inadvisable
because:
(a) additional governmental restrictions, not in force and effect on
the date hereof, shall have been imposed upon trading in securities
generally or minimum or maximum prices shall have been generally
established on the New York Stock Exchange or the American Stock Exchange,
or trading in securities generally shall have been suspended or materially
limited on either such exchange or on The Nasdaq Stock Market (other than
pursuant to so-called circuit breaker rules) or a general banking
moratorium shall have been established by either federal or state
authorities in New York or Wisconsin;
(b) any event shall have occurred or shall exist which makes untrue
or incorrect in any material respect any statement or information
contained in the Registration Statement or which is not reflected in the
Registration Statement but should be reflected therein to make the
statements or information contained therein not misleading in any material
respect; or
(c) an outbreak or escalation of hostilities in which the United
States is involved or other national or international calamity or any
substantial change in political, financial or economic conditions shall
have occurred or shall have accelerated to such extent, in the judgment of
the Underwriters, as to have a material adverse effect on the financial
markets of the United States, or to make it impracticable or inadvisable
to proceed with completion of the sale of and payment for the Preferred
Securities as provided in this Agreement.
Any termination pursuant to this Section shall be without liability on the
part of any Underwriter to the Company, or on the part of the Company to any
Underwriter, except for expenses to be paid by the Company pursuant to Section
7 hereof or except as to indemnification to the extent provided in Section 10
hereof.
26
13. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties, covenants
and other statements of the Offerors, of officers or directors of the
Company, and of the several Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company, or the
Trust or any of its or their partners, officers, directors or any controlling
person, as the case may be, and will survive delivery of and payment for the
Preferred Securities sold hereunder.
14. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered, telecopied (with receipt
confirmed) or telegraphed and confirmed to Robert W. Baird & Co. Incorporated
at 227 West Monroe Street, Suite 2100, Chicago, Illinois 60606, Attention:
Samuel J. Tinaglia, with a copy to Dewey B. Crawford, Esq., Gardner, Carton &
Douglas, 321 N. Clark Street, Chicago, Illinois 60610; and if sent to the
Company, will be mailed, delivered, telecopied (with receipt confirmed) or
telegraphed and confirmed to the Company at 4508 IDS Center, Minneapolis,
Minnesota 55402, Attention: Scott D. Rued, Vice President, with a copy to
Dennis M. Myers, Esq., Kirkland & Ellis, 200 East Randolph Drive, Chicago,
Illinois 60601.
15. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors, personal
representatives and assigns, and to the benefit of the officers and directors
and controlling persons referred to in Section ___ hereof and no other person
will have any right or obligation hereunder. The term "successors" shall not
include any purchaser of the Preferred Securities as such from any of the
Underwriters merely by reason of such purchase.
16. PARTIAL UNENFORCEABILITY. If any section, paragraph, clause or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph clause or provision hereof.
17. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of Illinois
without reference to conflict of law principles thereunder. This Agreement
may be signed in various counterparts which together shall constitute one and
the same instrument, and shall be effective when at least one counterpart
hereof shall have been executed by or on behalf of each party hereto.
27
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the
several Underwriters, all in accordance with its terms.
Very truly yours,
DURA AUTOMOTIVE SYSTEMS
CAPITAL TRUST
By: DURA AUTOMOTIVE SYSTEMS,
INC., as Sponsor
By: ____________________________
Name:_______________________
Title:________________________
DURA AUTOMOTIVE SYSTEMS, INC.
By:______________________________
Name:_______________________
Title:________________________
DURA OPERATING CORP.
By:______________________________
Name:_______________________
Title:________________________
28
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
ROBERT W. BAIRD & CO. INCORPORATED
By: ___________________________________
Its: ___________________________________
PIPER JAFFRAY INC.
By: ___________________________________
Its: ___________________________________
29
DURA AUTOMOTIVE SYSTEMS CAPITAL TRUST
SCHEDULE I
NUMBER OF FIRM
PREFERRED SECURITIES
NAME OF UNDERWRITER TO BE PURCAHSED
- ------------------- --------------------
_______
________
Total ________
30