EXHIBIT 1.1
XXXXXX AUTOMOTIVE GROUP, INC.
COMMON STOCK (PAR VALUE $0.01)
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FORM OF UNDERWRITING AGREEMENT
March....., 2002
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx Barney Inc.
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxxxx, Inc.
As representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Automotive Group, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in SCHEDULE I hereto (the "Underwriters") an aggregate
of . . . . . . .shares and, at the election of the Underwriters, up to . . . . .
.. additional shares of Common Stock, par value $.01 per share ("Stock") of the
Company and the stockholders of the Company named in SCHEDULE II hereto (the
"Selling Stockholders") propose, subject to the terms and conditions stated
herein, to sell to the Underwriters an aggregate of . . . . . . . shares of
Stock. The aggregate of . . . . shares to be sold by the Company and the Selling
Stockholders is herein called "Firm Shares" and the aggregate of . . . . .
additional shares to be sold by the Company is herein called the "Optional
Shares". The Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof are herein collectively called the
"Shares".
Prior to the First Time of Delivery (as defined below), substantially
all of the membership interests in Xxxxxx Automotive Group L.L.C., a Delaware
limited liability company ("Xxxxxx Automotive LLC"), will be contributed to the
Company and to a wholly-owned subsidiary of the Company pursuant to that certain
Transfer and Exchange Agreement, to be dated as of March , 2002, among Xxxxxx
Automotive Holdings L.L.C., the Company and the Dealers and Managers parties
thereto (the "Transfer and Exchange Agreement"). The transfer of substantially
all of the membership interests in Xxxxxx Automotive LLC to the Company and a
wholly-owned subsidiary pursuant to the Transfer and Exchange Agreement is
hereinafter referred to as the "Transfer".
1. (a) The Company and Xxxxxx Automotive LLC, jointly and severally,
represent and warrant to, and agree with, each of the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-65998)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and
any post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each of
the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing
the size of the offering (a "Rule 462(b) Registration Statement"),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statement has
heretofore been filed with the Commission; and no stop order suspending
the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with
the Commission pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Act is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, each as
amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; such
final prospectus, in the form first filed pursuant to Rule 424(b) under
the Act, is hereinafter called the "Prospectus");
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through Xxxxxxx, Sachs & Co. expressly for use
therein or by a Selling Stockholder expressly for use in the
preparation of the answers therein to Item 7 of Form S-1;
(iii) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein or by a Selling
Stockholder expressly for use in the preparation of the answers therein
to Item 7 of Form S-1;
(iv) Neither the Company, Xxxxxx Automotive LLC nor any of
their respective subsidiaries has sustained since the date of the
latest audited financial statements included in the Prospectus any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
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any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
change in the capital stock or membership interests, short-term debt or
long-term debt of the Company, Xxxxxx Automotive LLC or any of their
respective subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity, members' equity or results of operations of the
Company, Xxxxxx Automotive LLC and their respective subsidiaries,
otherwise than as set forth or contemplated in the Prospectus;
(v) The Company, Xxxxxx Automotive LLC and each of their
respective subsidiaries have good and marketable title in fee simple to
all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus
(including, without limitation, such liens imposed under the Credit
Agreement, dated as of January 17, 2001, between Xxxxxx Automotive LLC
and the lenders named therein, and the Wholesale Agreement of even date
therewith and between such parties (collectively, the "Credit
Facility"))or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company, Xxxxxx Automotive LLC and each of
their respective subsidiaries; and any real property and buildings held
under lease by the Company, Xxxxxx Automotive LLC and each of their
respective subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property
and buildings by the Company, Xxxxxx Automotive LLC and each of their
respective subsidiaries, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights, and to general equity principles;
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; each "significant subsidiary" (as
such term is defined in Rule 1-02 of Regulation S-X promulgated under
the Act) of the Company that is a corporation has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; each significant
subsidiary of the Company that is a limited liability company has been
duly formed and is validly existing as a limited liability company in
good standing under the laws of its jurisdiction of formation; and each
significant subsidiary of the Company that is a limited partnership has
been duly formed and is validly existing as a limited partnership in
good standing under the laws of its jurisdiction of formation;
(vii) Xxxxxx Automotive LLC has been duly formed and is
validly existing as a limited liability company in good standing under
the laws of the State of Delaware, with power and authority (limited
liability company and other) to own its properties and conduct the
business of the Company as described in the Prospectus prior to the
consummation of the Transfer and to conduct its business as a
wholly-owned subsidiary of the Company upon the consummation of the
Transfer, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the
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laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the failure
to be so qualified in any such jurisdiction; each significant
subsidiary of Xxxxxx Automotive LLC that is a corporation has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; each significant
subsidiary of Xxxxxx Automotive LLC that is a limited liability company
has been duly formed and is validly existing as a limited liability
company in good standing under the laws of its jurisdiction of
formation; and each significant subsidiary of Xxxxxx Automotive LLC
that is a limited partnership has been duly formed and is validly
existing as a limited partnership in good standing under the laws of
its jurisdiction of formation
(viii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description of the
Stock contained in the Prospectus under the caption "Description of
Capital Stock"; and all of the issued shares of capital stock, all of
the issued membership interests and limited partnership interests of
each subsidiary of the Company and Xxxxxx Automotive LLC have been duly
and validly authorized and issued, are, in the case of shares of
capital stock, fully paid and non-assessable and (except for directors'
qualifying shares) are owned directly or indirectly by the Company or
Xxxxxx Automotive LLC, as the case may be, free and clear of all liens
(other than liens imposed under the Credit Facility), encumbrances,
equities or claims;
(ix) All of the issued membership interests of Xxxxxx
Automotive LLC have been duly and validly authorized and issued; upon
the effective time of the Transfer as provided in the Transfer and
Exchange Agreement, 100 percent of the membership interests of Xxxxxx
Automotive LLC shall be owned directly or indirectly by the Company;
(x) The unissued Shares to be issued and sold by the Company
to the Underwriters hereunder have been duly and validly authorized
and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the Stock
contained in the Prospectus;
(xi) The Transfer and Exchange Agreement has been duly
authorized by the Company and Xxxxxx Automotive LLC and the Transfer
will conform in all material respects to the description thereof
contained in the Prospectus;
(xii) The issue and sale of the Shares to be sold by the
Company, the Transfer and the compliance by the Company and Xxxxxx
Automotive LLC with all of the provisions of this Agreement and the
Transfer and Exchange Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, Franchise Agreement (as defined herein), framework
franchise agreement or other material agreement or instrument to which
the Company, Xxxxxx Automotive LLC or any of their respective
subsidiaries is a party or by which the Company, Xxxxxx Automotive LLC
or any of their respective subsidiaries is bound or to which any of the
property or assets of the Company, Xxxxxx Automotive LLC or any of
their respective subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation
or By-laws of the Company, the Certificate of Formation or Limited
Liability Company Agreement of Xxxxxx Automotive LLC, or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company, Xxxxxx
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Automotive LLC or any of their respective subsidiaries or any of their
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Shares, the
consummation of the Transfer or the consummation by the Company and
Xxxxxx Automotive LLC of the transactions contemplated by this
Agreement and the Transfer and Exchange Agreement, except the
registration under the Act of the Shares and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters;
(xiii) Neither the Company nor any of those of its or Xxxxxx
Automotive LLC's subsidiaries that are corporations are in violation of
their respective Certificates of Incorporation or By-laws; neither
Xxxxxx Automotive LLC nor any of those of its or the Company's
subsidiaries that are limited liability companies are in violation of
their respective Certificates of Formation or Limited Liability Company
Agreements; none of the Company's or Xxxxxx Automotive LLC's
subsidiaries that are limited partnerships are in violation of their
Certificates of Limited Partnership or Limited Partnership Agreements;
and neither the Company, Xxxxxx Automotive LLC nor any of their
respective subsidiaries are in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or
other material agreement or instrument to which they are parties or by
which they or any of their properties may be bound;
(xiv) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, and under the caption
"Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair;
(xv) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company, Xxxxxx
Automotive LLC or any of their respective subsidiaries is a party or of
which any property of the Company, Xxxxxx Automotive LLC or any of
their respective subsidiaries is the subject which, if determined
adversely to the Company, Xxxxxx Automotive LLC or any of their
respective subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated financial
position, stockholders' equity, members' equity, partners' equity or
results of operations of the Company, Xxxxxx Automotive LLC or any of
their respective subsidiaries; and, to the best of the Company's and
Xxxxxx Automotive LLC's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(xvi) Neither the Company nor Xxxxxx Automotive LLC is and,
after giving effect to the offering and sale of the Shares, neither the
Company nor Xxxxxx Automotive LLC will be an "investment company", as
such term is defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(xvii) Xxxxxx Xxxxxxxx LLP, which has certified certain
financial statements of the Company, Xxxxxx Automotive LLC and their
respective subsidiaries, and Xxxxx Xxxx P.L.L.C., which has certified
certain financial statements of Xxxxxx Chevrolet, Inc. and affiliated
entities are each independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder;
(xviii) The Company, Xxxxxx Automotive LLC and their
respective subsidiaries have obtained all environmental permits,
licenses and other authorizations
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required by federal, state and local law in order to conduct their
businesses as described in the Prospectus, except where failure to do
so would not have a material adverse effect on the current or future
consolidated financial position, stockholders' equity, members' equity,
partners' equity or results of operations of the Company, Xxxxxx
Automotive LLC or any of their respective subsidiaries (a "Material
Adverse Effect"); the Company and its subsidiaries are conducting their
businesses in compliance with such permits, licenses and authorizations
and with applicable environmental laws, except where the failure to be
in compliance would not, individually or in the aggregate, have a
Material Adverse Effect; and neither the Company, Xxxxxx Automotive LLC
nor any of their respective subsidiaries are in violation of any
Federal or state law or regulation relating to the storage, handling,
disposal, release or transportation of hazardous or toxic materials,
which violation would subject the Company, Xxxxxx Automotive LLC or any
of their respective subsidiaries to any liability or disability, except
where such violations would not, individually or in the aggregate, have
a Material Adverse Effect;
(xix) The Company, Xxxxxx Automotive LLC and each of their
respective subsidiaries have all licenses, franchises, permits,
authorizations, approvals and orders and other concessions of and from
all governmental or regulatory authorities that are necessary to own or
lease their properties and conduct their businesses as described in the
Prospectus, except for such licenses, franchises, permits
authorizations, approvals and orders the failure to obtain which would
not, individually or in the aggregate, have a Material Adverse Effect;
(xx) The Company, Xxxxxx Automotive LLC and each of their
respective subsidiaries are conducting business in compliance with all
applicable statutes, rules, regulations, standards, guides and orders
administered or issued by any governmental or regulatory authority in
the jurisdictions in which it is conducting business, except where the
failure to be so in compliance would not, individually or in the
aggregate, have a Material Adverse Effect;
(xxi) The Company, Xxxxxx Automotive LLC or a wholly-owned
direct or indirect subsidiary (except in the case of CK Chevrolet
L.L.C. d/b/a Xxxxxx Chevrolet and CK Motors L.L.C. d/b/a Xxxxxx
Pontiac-GMC- Buick and Xxxxxx Motor Mall, which are each majority
owned, and Xxxxxx St. Xxxxx XX L.L.C. d/b/a Plaza Land Rover St. Louis,
which is minority owned) has entered into a franchise agreement with
each of the manufacturers listed on Schedule III hereto (collectively,
the "Franchise Agreements", and each a "Franchise Agreement"), each of
which has been duly authorized, executed and delivered by the Company,
Xxxxxx Automotive LLC or such subsidiary, is in full force and effect
and constitutes the valid and binding agreement between the parties
thereto, enforceable in accordance with its terms, subject to
applicable Federal and state franchise laws and subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights, and to general equity principles; the Franchise Agreements
permit the Company, Xxxxxx Automotive LLC or a subsidiary or
subsidiaries to operate a vehicle sales franchise at the locations
indicated on Schedule III; the Company, Xxxxxx Automotive LLC and their
subsidiaries are in compliance with all material terms and conditions
of the Franchise Agreements, and, to the best knowledge of the Company
and Xxxxxx Automotive LLC, there has not occurred any material default
under any of the Franchise Agreements or any event that with the giving
of notice or the lapse of time would constitute a material default
thereunder; and
(xxii) Except as disclosed in the Prospectus, no holders of
any securities of the Company or Xxxxxx Automotive LLC have any rights
to require the Company or Xxxxxx Automotive LLC to register any
securities of the Company under the Act.
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(b) Each of the Selling Stockholders severally represents and
warrants to, and agrees with, each of the Underwriters, the Company and Xxxxxx
Automotive LLC that:
(i) All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Stockholder of
this Agreement and the Power of Attorney and the Custody Agreement
hereinafter referred to, and for the sale and delivery of the Shares to
be sold by such Selling Stockholder hereunder, have been obtained; and
such Selling Stockholder has full right, power and authority to enter
into this Agreement, the Power-of-Attorney and the Custody Agreement
and, upon the issuance of the Shares to or on behalf of the Selling
Stockholder prior to the First Time of Delivery, such Selling
Stockholder shall have full right, power and authority to sell, assign,
transfer and deliver the Shares to be sold by such Selling Stockholder
hereunder;
(ii) The sale of the Shares to be sold by such Selling
Stockholder hereunder and the compliance by such Selling Stockholder
with all of the provisions of this Agreement, the Power of Attorney and
the Custody Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any statute, indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is bound or
to which any of the property or assets of such Selling Stockholder is
subject, nor will such action result in any violation of the provisions
of the Certificate of Formation or Limited Liability Company Agreement
of such Selling Stockholder if such Selling Stockholder is a limited
liability company or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over such
Selling Stockholder or the property of such Selling Stockholder;
(iii) Assuming that the Shares to be sold by such Selling
Stockholder have been validly issued to such Selling Stockholder by the
Company, such Selling Stockholder shall have, immediately prior to the
First Time of Delivery (as defined in Section 4 hereof), good and valid
title to the Shares to be sold by such Selling Stockholder hereunder,
free and clear of all liens, encumbrances, equities or claims; and,
upon delivery of such Shares and payment therefor pursuant hereto, good
and valid title to such Shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the several
Underwriters;
(iv) Such Selling Stockholder shall not, during the period
beginning from the date hereof and continuing to and including the date
two years after the date of the Prospectus, offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into
or exchangeable for, or that represent the right to receive, Stock or
any such substantially similar securities (other than pursuant to
employee stock option plans existing on, or upon the conversion or
exchange of convertible or exchangeable securities outstanding as of,
the date of this Agreement), without the prior written consent of
Xxxxxxx, Sachs & Co.;
(v) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(vi) To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto are made in reliance upon and in
conformity with written
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information furnished to the Company by such Selling Stockholder
expressly for use therein, such Preliminary Prospectus and the
Registration Statement did, and the Prospectus and any further
amendments or supplements to the Registration Statement and the
Prospectus, when they become effective or are filed with the
Commission, as the case may be, will not contain 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;
(vii) In order to avoid backup withholding of U.S. Federal
income tax on the cash received in connection with the transactions
herein contemplated, such Selling Stockholder will deliver to you prior
to or at the First Time of Delivery (as hereinafter defined) a properly
completed and executed United States Internal Revenue Service Form W-9
(or other applicable form or statement specified by applicable
regulations of the United States Department of the Treasury in lieu
thereof);
(viii) Immediately prior to the First Time of Delivery,
certificates in negotiable form representing all of the Shares to be
sold by such Selling Stockholder hereunder shall have been placed in
custody under a Custody Agreement, in the form heretofore furnished
to you (the "Custody Agreement"), duly executed and delivered by
such Selling Stockholder to Xxx X. Xxxx and Xxxx X. Xxx, each as
custodian (the "Custodian"), and such Selling Stockholder has duly
executed and delivered a Power of Attorney, in the form heretofore
furnished to you (the "Power of Attorney"), appointing the persons
indicated in SCHEDULE II hereto, and each of them, as such Selling
Stockholder's attorneys-in-fact (the "Attorneys-in-Fact") with
authority to execute and deliver this Agreement on behalf of such
Selling Stockholder, to determine the purchase price to be paid by
the Underwriters to the Selling Stockholders as provided in Section
2 hereof, to authorize the delivery of the Shares to be sold by such
Selling Stockholder hereunder and otherwise to act on behalf of such
Selling Stockholder in connection with the transactions contemplated
by this Agreement and the Custody Agreement; and
(ix) The Shares represented by the certificates to be held in
custody for such Selling Stockholder under the Custody Agreement shall
be subject to the interests of the Underwriters hereunder; the
arrangements made by such Selling Stockholder for such custody, and the
appointment by such Selling Stockholder of the Attorneys-in-Fact by the
Power of Attorney, are to that extent irrevocable; the obligations of
the Selling Stockholders hereunder to the extent permitted by
applicable law shall not be terminated by operation of law, whether by
the death or incapacity of any individual Selling Stockholder or, in
the case of an estate or trust, by the death or incapacity of any
executor or trustee or the termination of such estate or trust, or in
the case of a partnership or corporation, by the dissolution of such
partnership or corporation, or by the occurrence of any other event; if
any individual Selling Stockholder or any such executor or trustee
should die or become incapacitated, or if any such estate or trust
should be terminated, or if any such partnership or corporation should
be dissolved, or if any other such event should occur, before the
delivery of the Shares hereunder, certificates representing the Shares
shall be delivered by or on behalf of the Selling Stockholders in
accordance with the terms and conditions of this Agreement and of the
Custody Agreements; and actions taken by the Attorneys-in-Fact pursuant
to the Powers of Attorney to the extent permitted by applicable law
shall be as valid as if such death, incapacity, termination,
dissolution or other event had not occurred, regardless of whether or
not the Custodian, the Attorneys-in-Fact, or any of them, shall have
received notice of such death, incapacity, termination, dissolution or
other event.
2. Subject to the terms and conditions herein set forth, the Company
and each of the Selling Stockholders agree, severally and not jointly, to sell
to each of the Underwriters,
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and each of the Underwriters agrees, severally and not jointly, to purchase from
the Company and each of the Selling Stockholders, at a purchase price per share
of $.............., the number of Firm Shares (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the aggregate number of
Shares to be sold by the Company and each of the Selling Stockholders as set
forth opposite their respective names in SCHEDULE II hereto by a fraction, the
numerator of which is the aggregate number of Firm Shares to be purchased by
such Underwriter as set forth opposite the name of such Underwriter in SCHEDULE
I hereto and the denominator of which is the aggregate number of Firm Shares to
be purchased by all of the Underwriters from the Company and all of the Selling
Stockholders hereunder and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as provided
below, the Company agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the purchase price per share set forth in clause (a) of this Section 2, that
portion of the number of Optional Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in SCHEDULE I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Company, as and to the extent indicated in SCHEDULE II hereto,
hereby grants to the Underwriters the right to purchase at their election up to
.................... Optional Shares, at the purchase price per share set forth
in the paragraph above, for the sole purpose of covering sales of shares in
excess of the number of Firm Shares. Any such election to purchase Optional
Shares may be exercised only by written notice from you to the Company and,
given within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Company and the Selling Stockholders shall be delivered by or on
behalf of the Company and the Selling Stockholders to Xxxxxxx, Sachs & Co., for
the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company and the Custodian on
behalf of each of the Selling Stockholders, as their interests may appear, to
Xxxxxxx, Xxxxx & Co. at least forty-eight hours in advance. The Company will
cause the certificates representing the Shares to be made available for checking
and packaging at least twenty-four hours prior to the Time of Delivery (as
defined below) with respect thereto at the office of Xxxxxxx, Sachs & Co., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Designated Office"). The time and
date of such delivery and payment shall be, with respect to the Firm Shares,
9:30 a.m., New York time, on ............., 2002 or such other time and date as
Xxxxxxx, Xxxxx & Co., the Company and the Selling Stockholders may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on
the date specified by Xxxxxxx, Sachs & Co. in the written notice given by
Xxxxxxx, Xxxxx & Co. to the Company of the Underwriters' election to purchase
such Optional Shares, or such other time and date as Xxxxxxx, Sachs & Co. and
the Company may agree upon in writing. Such time and date for delivery of the
Firm Shares is herein called the "First Time of Delivery", such time and date
for
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delivery of the Optional Shares, if not the First Time of Delivery, is herein
called the "Second Time of Delivery", and each such time and date for delivery
is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(n), will be delivered at the offices of
Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing
Location"), and the Shares will be delivered at the Designated Office, all at
such Time of Delivery. A meeting will be held at the Closing Location at 1:00
p.m., New York City time, on the New York Business Day next preceding such Time
of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4 and Section 5, "New York Business
Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
5. The Company and Xxxxxx Automotive LLC, jointly and severally, agree
with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus which
shall be disapproved by you promptly after reasonable notice thereof; to advise
you, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you with copies thereof; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Shares for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or prospectus or
suspending any such qualification, promptly to use its best efforts to obtain
the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) As soon as practicable on the New York Business Day next
succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with written and electronic copies of the Prospectus in New York
City in such quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering or sale of
the Shares and if at such time any events shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such period to amend or
supplement the
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Prospectus in order to comply with the Act, to notify you and upon your request
to prepare and furnish without charge to each Underwriter and to any dealer in
securities as many written and electronic copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance, and in
case any Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written and
electronic copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to the Company's stockholders
as soon as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the Prospectus,
not to offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to the
Shares, including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than (A) pursuant to employee stock
option plans existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement or (B) in
connection with acquisitions, provided that such securities shall not exceed in
the aggregate 10% of the Stock to be outstanding immediately following the
offering contemplated hereby and provided, further, that the recipients of such
securities agree to be bound by this Section 5(e) for the duration of the 180
day period), without the prior written consent of Xxxxxxx, Xxxxx & Co.;
(f) To furnish to the Company's stockholders as soon as
practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter ending
after the effective date of the Registration Statement), to make available to
the Company's stockholders consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of
the Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to the
Company's stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange (the "Exchange);
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(j) To file with the Commission such information on Form 10-Q
or Form 10-K as may be required by Rule 463 under the Act; and
(k) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act; and
6. The Company, Xxxxxx Automotive LLC and each of the Selling
Stockholders covenant and agree with one another and with the several
Underwriters that (a) the Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) all fees and expenses in connection with listing the Shares on the
Exchange; (v) the filing fees incident to, and the reasonable fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vi) the cost of preparing stock certificates;
(vii) the cost and charges of any transfer agent or registrar, and (viii) all
other costs and expenses incident to the performance of the obligations of the
Company, Xxxxxx Automotive LLC and the Selling Stockholders hereunder which are
not otherwise specifically provided for in this Section; and (b) each Selling
Stockholder will pay or cause to be paid all costs and expenses incident to the
performance of such Selling Stockholder's obligations hereunder which are not
otherwise specifically provided for in this Section, including (i) any fees and
expenses of counsel for such Selling Stockholder; (ii) such Selling
Stockholder's pro rata share of the fees and expenses of the Attorneys-in-Fact
and the Custodian; and (iii) all expenses and taxes incident to the sale and
delivery of the Shares to be sold by such Selling Stockholder to the
Underwriters hereunder. It is understood, however, that the Company, and Xxxxxx
Automotive LLC shall bear, and the Selling Stockholders shall not be required to
pay or to reimburse the Company or Xxxxxx Automotive LLC for, the cost of any
other matters not directly relating to the sale and purchase of the Shares
pursuant to this Agreement, and that, except as provided in this Section, and
Sections 8 and 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, stock transfer taxes on resale of
any of the Shares by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company, Xxxxxx Automotive LLC and of the Selling Stockholders herein are,
at and as of such Time of Delivery, true and correct, the condition that the
Company, Xxxxxx Automotive LLC and the Selling Stockholders shall have performed
all of its and their obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations
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under the Act and in accordance with Section 5(a) hereof; if the Company has
elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall
have furnished to you such written opinion or opinions, dated such Time of
Delivery, with respect to the incorporation of the Company, the validity of the
Shares, the Registration Statement, the Prospectus and such other related
matters as you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(c) Cravath, Swaine & Xxxxx, counsel for the Company, shall
have furnished to you, in form and substance satisfactory to you, (i) their
written opinion, dated such Time of Delivery, to the effect that:
(A) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(B) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have been duly and validly
authorized and issued and are fully paid and non-assessable;
and the Shares conform to the description of the Stock
contained in the Prospectus;
(C) This Agreement has been duly authorized, executed
and delivered by the Company and Xxxxxx Automotive LLC;
(D) The issue and sale of the Shares being delivered
at such Time of Delivery to be sold by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any (x) indenture, or loan agreement with a
financial institution, or (y) material mortgage, deed of trust
or other agreement or instrument, in the case of the
agreements and instruments described in clause (y), known to
such counsel, to which the Company or any of its significant
subsidiaries is a party or by which the Company or any of its
significant subsidiaries is bound or to which any of the
property or assets of the Company or any of its significant
subsidiaries is subject (excluding the Franchise Agreements),
nor will such action result in any violation of the provisions
of the Certificate of Incorporation or By-laws of the Company
or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its significant
subsidiaries or any of their properties;
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(E) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the sale of the
Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under
the Act of the Shares, and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the
Underwriters; provided, that such opinion may be limited to
the laws of the United States, the laws of the State of New
York and the General Corporation Law and Limited Liability
Company Act of the State of Delaware;
(F) Each "significant subsidiary" (as defined in Rule
1-02 of Regulation S-X promulgated under the Act) of the
Company that is a corporation has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation; and all of the
issued shares of capital stock of each such subsidiary have
been duly and validly authorized and issued, are fully paid
and non-assessable, and (except for directors' qualifying
shares) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims (such
counsel being entitled to (i) rely in respect of the opinion
in this clause upon opinions of local counsel and in respect
of matters of fact upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall
state that they believe that both you and they are justified
in relying upon such opinions and certificates, and (ii)
exclude from such opinion such liens as are imposed under the
terms of the Credit Facility);
(G) The statements set forth in the Prospectus under
the caption "Description of Capital Stock", insofar as they
purport to constitute a summary of the terms of the Stock, and
under the caption "Underwriting" insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair; and
(H) The Company is not an "investment company", as
such term is defined in the Investment Company Act; and
(ii) their letter, dated such Time of Delivery, to the effect
that:
The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company
prior to such Time of Delivery (other than the financial
statements and related schedules and information of a
financial or accounting nature therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the
rules and regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion in
subsection (vi) of this Section 7(c), they have no reason to
believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company
prior to such Time of Delivery (other than the financial
statements and related schedules and information of a
financial or accounting nature therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
-14-
statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and information of
a financial or accounting nature therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or
that, as of such Time of Delivery, either the Registration
Statement or the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related
schedules and information of a financial or accounting nature
therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; and they do not know of any
amendment to the Registration Statement required to be filed
or of any contracts or other documents of a character required
to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the
Prospectus which are not filed or described as required.
(d) General counsel to the Company or other counsel of the
Company satisfactory to you shall have furnished to you, in form and substance
satisfactory to you, (i) his written opinion, dated such Time of Delivery, to
the effect that:
(A) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(B) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have been duly and validly
authorized and issued and are fully paid and non-assessable;
and the Shares conform to the description of the Stock
contained in the Prospectus;
(C) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material
liability or disability by reason of failure to be so
qualified in any such jurisdiction (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company, provided that
such counsel shall state that they believe that both you and
they are justified in relying upon such opinions and
certificates);
(D) (x) Each significant subsidiary of the Company
that is a limited liability company has been duly formed and
is validly existing as a limited liability company in good
standing under the laws of its jurisdiction of formation; and
all of the issued membership interests of each such subsidiary
have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly or indirectly
by the Company, free and
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clear of all liens, encumbrances, equities or claims; and (y)
each significant subsidiary of the Company that is a limited
partnership has been duly formed and is validly existing as a
limited partnership in good standing under the laws of its
jurisdiction of formation; and all the issued limited
partnership interests of each such subsidiary have been duly
and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the
Company free and clear of all liens, encumbrances, equities or
claims; (such counsel being entitled to (i) rely in respect of
the opinion in this clause upon opinions of local counsel and
in respect of matters of fact upon certificates of officers of
the Company or its subsidiaries, provided that such counsel
shall state that they believe that both you and they are
justified in relying upon such opinions and certificates, and
(ii) exclude from such opinion such liens and encumbrances as
are imposed under the terms of the Credit Facility);
(E) To such counsel's knowledge, the Company and its
subsidiaries have good and marketable title in fee simple to
all real property owned by them, in each case free and clear
of all liens, encumbrances and defects except such as do not
interfere with the use and continued use made and proposed to
be made of such property by the Company and its subsidiaries;
and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use and continued
use made and proposed to be made of such property and
buildings by the Company and its subsidiaries (in giving the
opinion in this clause, such counsel may (i) state that no
examination of record titles for the purpose of such opinion
has been made, and that they are relying upon a general review
of the titles of the Company and its subsidiaries, upon
opinions of local counsel and abstracts, reports and policies
of title companies rendered or issued at or subsequent to the
time of acquisition of such property by the Company or its
subsidiaries, upon opinions of counsel to the lessors of such
property and, in respect of matters of fact, upon certificates
of officers of the Company or its subsidiaries, provided that
such counsel shall state that they believe that both you and
they are justified in relying upon such opinions, abstracts,
reports, policies and certificates, (ii) exclude from such
opinion liens, encumbrances, defects and exceptions that would
not have a Material Adverse Effect and (iii) exclude from such
opinion such liens and encumbrances as are imposed under the
terms of the Credit Facility);
(F) To such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect; and, to such counsel's knowledge, no
such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(G) This Agreement has been duly authorized, executed
and delivered by the Company and Xxxxxx Automotive LLC;
(H) (x) The Company is not in violation of its
Certificate of Incorporation or By-laws, nor is
it in default in the performance or
-16-
observance of any material obligation, agreement,
covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, or lease
or agreement or other instrument to which it is a
party or by which it or any of its properties may
be bound;
(y) To such counsel's knowledge, none of the
significant subsidiaries of the Company that are
corporations are in violation of their respective
Certificates of Incorporation or By-laws, none of
the significant subsidiaries of the Company that
are limited liability companies are in violation
of their respective Certificates of Formation or
Limited Liability Company Agreements, none of the
significant subsidiaries of the Company that are
limited partnerships are in violation of their
respective Certificates of Limited Partnership or
Limited Partnership Agreements, and no such
significant subsidiary is in default in the
performance or observance of any material
obligation, agreement, covenant or condition
contained in any material indenture, mortgage,
deed of trust, loan agreement, or lease or
agreement or other material instrument to which
it is a party or by which it or any of its
properties may be bound; and
(z) To the knowledge of such counsel, none
of the subsidiaries of the Company that are not
significant subsidiaries are (I) in the case of
corporations, in violation of their respective
Certificates of Incorporation or By-laws, (II) in
the case of limited liability companies, in
violation of their respective Certificates of
Formation or Limited Liability Company
Agreements, and (III) in the case of limited
partnerships, in violation of their respective
Certificates of Limited Partnership or Limited
Partnership Agreements, and no such subsidiary is
in default in the performance or observance of
any material obligation, agreement, covenant or
condition contained in any material indenture,
mortgage, deed of trust, loan agreement, or lease
or agreement or other material instrument to
which it is a party or by which it or any of its
properties may be bound;
provided that such counsel may exclude from such opinion (i)
the Franchise Agreements and (ii) such violations and defaults
that would not have a Material Adverse Effect;
(ii) his letter dated such Time of Delivery, to the effect
that:
The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company
prior to such Time of Delivery (other than the financial
statements and related schedules and information of a
financial or accounting nature therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the
rules and regulations thereunder; they have no reason to
believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company
prior to such Time of Delivery (other than the financial
statements and related schedules and information of a
financial or accounting nature therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement
-17-
thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules and
information of a financial or accounting nature therein, as to
which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading or that, as of such Time of Delivery, either the
Registration Statement or the Prospectus or any further
amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and
related schedules and information of a financial or accounting
nature therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and they do not know of
any amendment to the Registration Statement required to be
filed or of any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described
as required.
(e) With respect to the First Time of Delivery, the respective
counsel for each of the Selling Stockholders, as indicated in SCHEDULE II
hereto, each shall have furnished to you their written opinion with respect to
each of the Selling Stockholders for whom they are acting as counsel (a draft of
each such opinion is attached as ANNEX II hereto), dated such Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) A Power-of-Attorney and a Custody Agreement have been duly
executed and delivered by such Selling Stockholder and constitute valid
and binding agreements of such Selling Stockholder in accordance with
their terms;
(ii) This Agreement has been duly executed and delivered by or
on behalf of such Selling Stockholder; and the sale of the Shares to be
sold by such Selling Stockholder hereunder and the compliance by such
Selling Stockholder with all of the provisions of this Agreement, the
Power-of-Attorney and the Custody Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any terms or provisions of, or
constitute a default under, any statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which such Selling Stockholder is a party or by which such
Selling Stockholder is bound or to which any of the property or assets
of such Selling Stockholder is subject, nor will such action result in
any violation of the provisions of the Certificate of Formation or
Limited Liability Company Agreement of such Selling Stockholder if such
Selling Stockholder is a limited liability company or any order, rule
or regulation known to such counsel of any court or governmental agency
or body having jurisdiction over such Selling Stockholder or the
property of such Selling Stockholder;
(iii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement in connection with
the Shares to be sold by such Selling Stockholder hereunder, except for
those consents that have been duly obtained and are in full force and
effect, such as have been obtained under the Act and such as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of such Shares by the Underwriters;
(iv) Assuming that the Shares to be sold by such Selling
Stockholder have been validly issued to such Selling Stockholder by the
Company, immediately prior
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to such Time of Delivery, such Selling Stockholder had good and valid
title to the Shares to be sold at such Time of Delivery by such Selling
Stockholder under this Agreement, free and clear of all liens,
encumbrances or claims, and full right, power and authority to sell,
assign, transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder; and
(v) Good and valid title to such Shares, free and clear of all
liens, encumbrances or claims, has been transferred to each of the
several Underwriters; provided that the Underwriters paid value
therefore and have purchased such Shares without notice of an adverse
claim thereto (within the meaning of the Uniform Commercial Code as in
effect as of such Time of Delivery in the State of New York).
In rendering the opinion in paragraph (iv), such counsel may rely upon
a certificate of such Selling Stockholder in respect of matters of fact as to
ownership of, and liens, encumbrances or claims on, the Shares sold by such
Selling Stockholder, provided that such counsel shall state that they believe
that both you and they are justified in relying upon such certificate. In
rendering such opinions such counsel may qualify such opinions by noting that no
opinion is pressed as to the validity or enforceability of any provision which
purports to provide that the powers granted under a power of attorney will
survive the death or incompetence of the principal. Such counsel may also note
that it is not expressing any opinion with respect to the accuracy or
completeness of any representation or warranty made by the Selling Stockholder
or any other party in the Registration Statement, this Agreement or any document
or instrument executed in connection with the transactions contemplated thereby.
(f) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the effective
date of any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and also at each Time of Delivery,
Xxxxxx Xxxxxxxx LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to you,
to the effect set forth in ANNEX I hereto;
(g) (i) Neither the Company, Xxxxxx Automotive LLC nor any of
their respective subsidiaries shall have sustained since the date of the latest
audited financial statements included in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus,
and (ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or
membership interests, short-term debt or long-term debt of the Company, Xxxxxx
Automotive LLC or any of their respective subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity, members' equity or results
of operations of the Company, Xxxxxx Automotive LLC and any of their respective
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(h) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on the Exchange; (ii) a suspension or material limitation
in trading in the Company's securities on the Exchange; (iii) a general
moratorium on commercial banking activities declared by either Federal or New
York State authorities; (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war; or (v) the occurrence of any
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other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(i) The Shares at such Time of Delivery shall have been duly
listed, subject to notice of issuance, on the Exchange;
(j) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each of (i) Xxxxxx Automotive Holdings
L.L.C. and (ii) the persons listed on SCHEDULE IV (such persons, the "Designated
Persons"), substantially to the effect that during the period beginning from the
date hereof and continuing to and including the date, (i) in the case of Xxxxxx
Automotive Holdings L.L.C., 180 days and (ii) in the case of each Designated
Person, two years after the date of the Prospectus, such persons shall not
offer, sell contract to sell or otherwise dispose of any Shares or securities of
the Company that are substantially similar to the Shares, including but not
limited to any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee stock option plans existing on, or
upon the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without the prior written
consent of Xxxxxxx, Xxxxx & Co.;
(k) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of this Agreement;
(l) Prior to the First Time of Delivery, the Transfer and
Exchange Agreement shall have been duly authorized, executed and delivered by
each of the parties thereto, and the Transfer shall have taken place;
(m) No legal action challenging the Transfer, the terms of the
Transfer and Exchange Agreement or the transactions contemplated thereby shall
have been filed and remain outstanding, the effect of which, in the judgment of
Xxxxxxx, Sachs & Co. makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the same manner contemplated by the Prospectus;
(n) The Company, Xxxxxx Automotive LLC and the Selling
Stockholders shall have furnished or caused to be furnished to you at such Time
of Delivery certificates of officers of the Company and of the Selling
Stockholders, respectively, satisfactory to you as to the accuracy of the
representations and warranties of the Company, Xxxxxx Automotive LLC and the
Selling Stockholders, respectively, herein at and as of such Time of Delivery,
as to the performance by the Company, Xxxxxx Automotive LLC and the Selling
Stockholders of all of their respective obligations hereunder to be performed at
or prior to such Time of Delivery, and as to such other matters as you may
reasonably request, and the Company and Xxxxxx Automotive LLC shall have
furnished or caused to be furnished certificates as to the matters set forth in
subsections (a), (f), (l) and (m) of this Section; and
(o) Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., special counsel
to Xxxxxx Automotive LLC, shall have furnished to you, in form and substance
satisfactory to you, their written opinion, dated such Time of Delivery, to the
effect that the offer and sale of the Shares will not result in a breach of the
Franchise Agreements with the franchisors named in such opinion.
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8. (a) The Company and Xxxxxx Automotive LLC, jointly and severally,
will indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Company, Xxxxxx Automotive LLC
nor Xxxxxx shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through
Xxxxxxx, Sachs & Co. expressly for use therein.
(b) Each of the Selling Stockholders, and incuding, in the
case of CNC Automotive, L.L.C., Xxxxx Xxxxxxxx, will indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in any Preliminary Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Selling Stockholder
expressly for use therein; and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that such Selling Stockholder shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Xxxxxxx, Sachs & Co. expressly for use
therein; and provided further that no Selling Stockholder shall be liable under
this Section 8(b) in an aggregate amount greater than the product of (x) the
number of Shares purchased by the Underwriters from such Selling Stockholder
under Section 2 hereof, TIMES (y) the initial public offering price per Share as
set forth on the front cover of the Prospectus.
(c) Each Underwriter will indemnify and hold harmless the
Company, Xxxxxx Automotive LLC and each Selling Stockholder against any losses,
claims, damages or liabilities to which the Company or such Selling Stockholder
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
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Preliminary Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Xxxxxxx, Sachs
& Co. expressly for use therein; and will reimburse the Company, Xxxxxx
Automotive LLC and each Selling Stockholder for any legal or other expenses
reasonably incurred by the Company, Xxxxxx Automotive LLC or such Selling
Stockholder in connection with investigating or defending any such action or
claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation, unless the indemnified party shall have
reasonably concluded (with the advice of counsel) that there may be defenses
available to it which are different from those or in addition to those available
to the indemnifying party, in which case, the indemnifying party shall be
responsible for the fees and expenses of counsel for the indemnified party it
being understood, however, that the Company and the Selling Stockholders shall
not be responsible for the fees and expenses of more than one separate firm of
attorneys for the Underwriters or controlling persons in any one action or
series of related actions. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party 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 the
relative benefits received by the Company, Xxxxxx Automotive LLC and the Selling
Stockholders on the one hand and the Underwriters on the other from the offering
of the Shares. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (d) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company, Xxxxxx Automotive LLC and the
Selling Stockholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company, Xxxxxx Automotive LLC and the Selling Stockholders on the
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one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company, Xxxxxx Automotive LLC and the Selling
Stockholders bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, Xxxxxx Automotive LLC or the Selling
Stockholders in question on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, Xxxxxx Automotive
LLC, each of the Selling Stockholders and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (e) 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 above in this
subsection (e). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company, Xxxxxx Automotive LLC and
the Selling Stockholders under this Section 8 shall be in addition to any
liability which the Company, Xxxxxx Automotive LLC and the respective Selling
Stockholders may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his or her
consent, is named in the Registration Statement as about to become a director of
the Company), each officer and director of Xxxxxx Automotive LLC and to each
person, if any, who controls the Company, Xxxxxx Automotive LLC or any Selling
Stockholder within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another party or
other parties to purchase such Shares on the terms contained herein. If
within thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Shares, then the Company and the Selling
Stockholders shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to you to
purchase such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company and the Selling Stockholders that
you have so arranged for the purchase of such Shares, or the Company and the
Selling Stockholders notify you that they have so arranged for the purchase
of such Shares, you or the Company and the Selling Stockholders shall have
the right to postpone Time of Delivery for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion
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may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Company and the Selling Stockholders as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of all the Shares to be purchased at such
Time of Delivery, then the Company and the Selling Stockholders shall have the
right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Company and the Selling Stockholders as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased exceeds
one-eleventh of the aggregate number of all of the Shares to be purchased at
such Time of Delivery, or if the Company and the Selling Stockholders shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company or the Selling Stockholders, except
for the expenses to be borne by the Company and the Selling Stockholders and the
Underwriters as provided in Section 6 hereof, the indemnity and contribution
agreements in Section 8 hereof and the obligations of Xxxxxx Automotive LLC in
Section 13 hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, Xxxxxx Automotive LLC, the Selling
Stockholders and the several Underwriters, as 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 any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
any controlling person of any Underwriter, or the Company, or any of the Selling
Stockholders, or any officer or director or controlling person of the Company,
Xxxxxx Automotive LLC or any controlling person of any Selling Stockholder, and
shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company, Xxxxxx Automotive LLC nor the Selling Stockholders shall
then be under any liability to any Underwriter except as provided in Sections 6,
8 and 13 hereof; but, if for any other reason any Shares are not delivered by or
on behalf of the Company and the Selling Stockholders as provided herein, the
Company and each of the Selling Stockholders pro rata (based on the number of
Shares to be sold by the Company and such Selling Stockholder hereunder), will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but the Company, Xxxxxx Automotive LLC
and the Selling Stockholders shall then be under no further liability to any
Underwriter in respect of the Shares not so delivered except as provided in
Sections 6, 8 and 13 hereof.
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12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by Xxxxxxx, Sachs & Co. on behalf of you as the representatives; and in
all dealings with any Selling Stockholder hereunder, you, the Company and Xxxxxx
Automotive LLC shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Stockholder made or given by any
or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxx Xxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to any Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Stockholder at its
address set forth in SCHEDULE II hereto; and if to the Company or Xxxxxx
Automotive LLC shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 8(d) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire or telex constituting such Questionnaire, which
address will be supplied to the Company, Xxxxxx Automotive LLC or the Selling
Stockholders by you on request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. Xxxxxx Automotive LLC covenants and agrees with the Underwriters
that it shall ensure and guarantee the compliance by the Company with all of the
Company's obligations hereunder.
14. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, Xxxxxx Automotive LLC and the Selling
Stockholders and, to the extent provided in Sections 8 and 10 hereof, the
officers and directors of the Company, Xxxxxx Automotive LLC and each person who
controls the Company, Xxxxxx Automotive LLC any Selling Stockholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
16. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
17. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
18. The Company and the Selling Stockholders are authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected to
be claimed with respect to such transaction, without the Underwriters imposing
any limitation of any kind.
If the foregoing is in accordance with your understanding, please sign
and return to us ten (10) counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the
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Underwriters, this letter and such acceptance hereof shall constitute a binding
agreement among each of the Underwriters, the Company, Xxxxxx Automotive LLC and
each of the Selling Stockholders. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company, Xxxxxx Automotive LLC and the Selling Stockholders for
examination, upon request, but without warranty on your part as to the authority
of the signers thereof.
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