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EXHIBIT 1
XXXXX'X ROADHOUSE, INC.
1,000,000 SHARES
OF
COMMON STOCK
UNDERWRITING AGREEMENT
July ___, 1997
X. X. XXXXXXXX & CO., L.L.C.
EQUITABLE SECURITIES CORPORATION
c/o X. X. Xxxxxxxx & Co., L.L.C.
J. C. Bradford Financial Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Xxxxx'x Roadhouse, Inc., a Tennessee corporation (the "Company"), proposes
to sell to the underwriters named in Schedule I hereto (the "Underwriters"),
1,000,000 shares (the "Firm Shares") of common stock, $.01 par value (the
"Common Stock"), of the Company. Such shares of Common Stock are to be sold to
the Underwriters, acting severally and not jointly, in such amounts as are set
forth in Schedule I hereto opposite the name of such Underwriter. The Company
and Xxxxx X. Xxxxx, Xx. (the "Selling Shareholder") propose to grant to the
Underwriters an option to purchase up to 100,000 and 50,000 additional shares
of Common Stock, respectively, as provided for in Section 3 of this Agreement
for the purpose of covering over-allotments (the "Option Shares"). The Firm
Shares and the Option Shares purchased pursuant to this Agreement are herein
called the "Shares." Unless otherwise indicated, references to the "Company"
herein shall include Logan's Management Group, Inc. and Logan's Partnership.
1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each of the Underwriters that:
(a) The Company meets the requirements for use of, and has filed
with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), a
registration statement on Form S-3
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(Registration No. 333-_________), including the related preliminary
prospectus relating to the Shares, and may have filed one or more
amendments thereto. Copies of such registration statement and any
amendments, including any post-effective amendments, and all forms of
the related prospectuses contained therein and any supplements
thereto, have been delivered to you. Such registration statement,
including the prospectus, Part II, all financial schedules and
exhibits thereto, and all information deemed to be a part of such
Registration Statement pursuant to Rule 430A under the Securities
Act, as amended at the time when it shall become effective, is herein
referred to as the "Registration Statement," and the prospectus
included as part of the Registration Statement on file with the
Commission that discloses all the information that was omitted from
the prospectus on the effective date pursuant to Rule 430A of the
Rules and Regulations (as defined below) and in the form filed
pursuant to Rule 424(b) under the Securities Act is herein referred
to as the "Final Prospectus." The prospectus included as part of the
Registration Statement on the date when the Registration Statement
became effective is referred to herein as the "Effective Prospectus."
Any prospectus included in the Registration Statement and in any
amendment thereto prior to the effective date of the Registration
Statement is referred to herein as a "Preliminary Prospectus." For
purposes of this Agreement, "Rules and Regulations" mean the rules
and regulations promulgated by the Commission under either the
Securities Act or the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as applicable.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus, and each Preliminary
Prospectus, at the time of filing thereof, complied with the
requirements of the Securities Act and the Rules and Regulations, and
did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; except that the foregoing does
not apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter specifically for use therein (it being understood that
the only information so provided is the information included in the
last paragraph on the cover page and in the first, third and fourth
paragraphs and the last sentence of the fifth paragraph under the
caption "Underwriting" in the Preliminary, Effective and Final
Prospectus). When the Registration Statement becomes effective and
at all times subsequent thereto up to and including the First Closing
Date (as hereinafter defined), (i) the Registration Statement, the
Effective Prospectus and Final Prospectus and any amendments or
supplements thereto will contain all statements which are required to
be stated therein in accordance with the Securities Act and the Rules
and Regulations and will comply with the requirements of the
Securities Act and the Rules and Regulations, and (ii) neither the
Registration Statement, the Effective Prospectus nor the Final
Prospectus nor any amendment or supplement thereto will include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they are
made, not misleading; except that the foregoing does
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not apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter specifically for use therein (it being understood that
the only information so provided is the information included in the
last paragraph on the cover page and in the first, third and fourth
paragraphs and the last sentence of the fifth paragraph under the
caption "Underwriting" in the Final Prospectus).
(c) The documents that are incorporated by reference in any
Preliminary, Effective and Final Prospectus or from which information
is so incorporated by reference, when they become effective or were
filed with the Commission, as the case may be, complied in all
material respects with the requirements of the Securities Act or the
Exchange Act, as applicable, and the Rules and Regulations, and any
documents so filed prior to the termination of this offering and
incorporated by reference subsequent to the effective date of the
Registration Statement, shall, when they are filed with the
Commission, conform in all material respects with the requirements of
the Securities Act and the Exchange Act, as applicable, and the Rules
and Regulations.
(d) The Company is duly incorporated and/or validly existing
and in good standing under the laws of the jurisdiction of its
incorporation with full power and authority to own its properties and
conduct its business as now conducted and is duly qualified or
authorized to do business and is in good standing in all
jurisdictions wherein the nature of its business or the character of
property owned or leased may require it to be qualified or authorized
to do business. The Company holds all licenses, consents and
approvals, and has satisfied all eligibility and other similar
requirements imposed by federal and state regulatory bodies,
administrative agencies or other governmental bodies, agencies or
officials, in each case as required for the conduct of the business
in which it is engaged and is contemplated to be engaged in the
Effective Prospectus and the Final Prospectus, except where the
failure to do so would not have a material adverse effect on the
Company.
(e) The Company has no subsidiaries and is not a partner or joint
venturer in any partnership or joint venture. As used herein, the
term "subsidiary" includes any corporation, joint venture or
partnership in which the Company or any subsidiary of the Company has
an ownership interest.
(f) The capitalization of the Company as of April 20, 1997 is as
set forth under the caption "Capitalization" in the Effective
Prospectus and the Final Prospectus, and the Company's capital stock
conforms to the description thereof contained or incorporated by
reference in the Effective Prospectus and the Final Prospectus. All
the issued shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable.
None of the issued shares of capital stock of the Company have been
issued in violation of any preemptive or similar rights. The Shares
to be sold by the Company hereunder have been duly and validly
authorized and, upon issuance and delivery and payment therefor in
the manner herein described, will be validly issued, fully
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paid and nonassessable. There are no preemptive rights or other
rights to subscribe for or to purchase, or any restriction upon the
transfer of, any shares of Common Stock pursuant to the Company's
charter, bylaws or other governing documents or any agreement or
other instrument to which the Company is a party or by which it may
be bound except as described in the Effective Prospectus and the
Final Prospectus. Except as described in the Effective Prospectus
and Final Prospectus, neither the filing of the Registration
Statement nor the offer or sale of the Shares as contemplated by this
Agreement gives rise to any rights, other than those which have been
waived or satisfied, for or relating to the registration of any
shares of Common Stock or any other securities of the Company. The
Underwriters will receive good and marketable title to the Shares to
be issued and delivered hereunder, free and clear of all liens,
encumbrances, claims, security interests, restrictions, shareholders'
agreements and voting trusts whatsoever.
(g) All offers and sales by the Company of the Company's
securities prior to the date hereof were at all relevant times duly
registered or the subject of an available exemption from the
registration requirements of the Securities Act and were duly
registered or the subject of an available exemption from the
registration requirements of the applicable state securities or Blue
Sky laws.
(h) The Company has full legal right, power and authority to
enter into this Agreement and to sell and deliver the Shares to
be sold by it to the Underwriters as provided herein, and this
Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except
as enforceability may be limited by applicable equitable principles,
or by bankruptcy, insolvency, reorganization, moratorium or similar
laws from time to time in effect affecting the enforcement of
creditors' rights. No consent, approval, authorization or order of
any court or governmental agency or body or third party is required
for the performance of this Agreement by the Company or the
consummation by the Company of the transactions contemplated hereby,
except such as have been obtained and such as may be required by the
National Association of Securities Dealers, Inc. ("NASD") or under
the Securities Act or state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters.
The issue and sale of the Shares by the Company, the Company's
performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in a breach or
violation of, or conflict with, any of the terms and provisions of,
or constitute a default by the Company under, any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which the Company is a party or to which the Company or
any of its properties is subject, the charter or bylaws of the
Company or any statute or any judgment, decree, order, rule or
regulation of any court or governmental agency or body applicable to
the Company or any of its properties.
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(i) The combined financial statements and the related notes of
the Company, included or incorporated by reference in the
Registration Statement, the Effective Prospectus and the Final
Prospectus present fairly the financial position, results of
operations and changes in financial position and cash flow of the
Company at the dates and for the periods to which they relate and
have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods
indicated. The other financial statements and schedules included or
incorporated by reference in or as schedules to the Registration
Statement conform to the requirements of the Securities Act, the
Exchange Act and the Rules and Regulations and present fairly the
information presented therein for the periods shown. The financial
and statistical data set forth in the Effective Prospectus and the
Final Prospectus under the captions "Prospectus Summary," "Use of
Proceeds," "Price Range of Common Stock," "Capitalization," "Selected
Financial Data," "Management's Discussion and Analysis of Financial
Condition and Results of Operations," and "Principal and Selling
Shareholders" fairly presents the information set forth therein on
the basis stated in the Effective Prospectus and the Final
Prospectus. KPMG Peat Marwick LLP, whose reports appear in the
Effective Prospectus and the Final Prospectus, are independent
accountants as required by the Securities Act and the Rules and
Regulations.
(j) Subsequent to December 29, 1996, the Company has not
sustained any material loss or interference with its business
or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which is
not disclosed in the Effective Prospectus and the Final Prospectus;
and subsequent to the respective dates as of which information is
given in the Registration Statement, the Effective Prospectus and the
Final Prospectus, (i) the Company has not incurred any material
liabilities or obligations, direct or contingent, or entered into any
transactions not in the ordinary course of business, and (ii) there
has not been any change in the capital stock, long-term debt,
obligations under capital leases or short-term borrowings of the
Company, or any issuance of options, warrants or rights to purchase
interests or the capital stock of the Company, or any adverse change,
or any development involving a prospective adverse change, in the
general affairs, management, business, prospects, financial position,
net worth or results of operations of the Company, except in each
case as described in the Effective Prospectus and the Final
Prospectus.
(k) Except as described in the Effective Prospectus and the Final
Prospectus, there is not pending, or to the knowledge of the Company
threatened, any action, suit, proceeding, inquiry or investigation,
to which the Company or its officers or directors is a party, or to
which the property of the Company is subject, before or brought by
any court or governmental agency or body, wherein an unfavorable
decision, ruling or finding could prevent or materially hinder the
consummation of this Agreement or result in a material adverse change
in the business condition (financial or other), prospects, financial
position, net worth or results of operations of the Company.
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(l) There are no contracts or other documents required by the
Securities Act or by the Rules and Regulations to be described in the
Registration Statement, the Effective Prospectus or the Final
Prospectus or to be filed as exhibits to the Registration Statement
which have not been described or incorporated by reference or filed
as required.
(m) Except as described in the Effective Prospectus and the Final
Prospectus, the Company has good and marketable title to all real and
material personal property owned by it, free and clear of all liens,
charges, encumbrances or defects except those reflected in the
financial statements hereinabove described or which are not material
in amount. The real and personal property and buildings referred to
in the Effective Prospectus and the Final Prospectus which are leased
from others by the Company are held under valid, subsisting and,
assuming due execution and delivery by parties to such leases other
than the Company, enforceable leases, except as enforceability may be
limited by applicable equitable principles or by bankruptcy,
insolvency, reorganization, moratorium or similar laws from time to
time in effect affecting the enforcement of creditors' rights. The
Company owns or leases all such properties as are necessary to its
operations as now conducted.
(n) The Company's system of internal accounting controls taken
as a whole is sufficient to meet the broad objectives of internal
accounting control insofar as those objectives pertain to the
prevention or detection of errors or irregularities in amounts that
would be material in relation to the Company's financial statements;
and, except as disclosed in the Effective Prospectus and the Final
Prospectus, none of the Company nor any employee or agent of the
Company has made any payment of funds or received or retained any
funds in violation of any law, rule or regulation.
(o) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof
and has paid all taxes shown as due therefrom to the extent such
taxes have become due and are not being contested in good faith; and
there is no tax deficiency that has been, nor does the Company have
knowledge of any tax deficiency which is likely to be, asserted
against the Company, which if determined adversely could materially
and adversely affect the earnings, assets, affairs, business
prospects or condition (financial or other) of the Company.
(p) The Company operates its business in conformity in all
material respects with all applicable statutes, common laws,
ordinances, decrees, orders, rules and regulations of governmental
bodies. The Company has all licenses, approvals or consents to
operate its businesses in all locations in which such businesses are
currently being operated, and the Company is not aware of any
existing or imminent matter which may materially adversely impact its
operations or business prospects other than as specifically disclosed
in the Effective Prospectus and the Final Prospectus.
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(q) The Company has filed with the applicable regulatory
authorities all statements, reports, information or forms required by
all applicable laws, regulations or orders, including all franchising
laws, except where such failure to file would not have a material
adverse effect on the Company; all such filings or submissions were
in compliance with applicable laws when filed, and no deficiencies
have been asserted by any regulatory commission, agency or authority
with respect to such filings or submissions. The Company has
maintained in full force and effect all licenses, registrations or
permits necessary or proper for the conduct of its business, and the
Company has not received any notification that any revocation or
limitation thereof is threatened or pending, and, except as disclosed
in the Effective Prospectus and the Final Prospectus, there is not to
the knowledge of the Company pending any change under any law,
regulation, license or permit which could materially adversely affect
the business, operations, property or business prospects of the
Company. The Company has not received any notice of violation of or
been threatened with a charge of violating and is not under
investigation with respect to a possible violation of any provision
of any law, regulation or order.
(r) No labor dispute or disturbance exists or to the knowledge of
the Company is imminent with any of the employees of the Company or
otherwise which could be expected to materially adversely affect the
condition (financial or otherwise), results of operations,
properties, affairs, management, business affairs or business
prospects of the Company.
(s) The Company owns the licenses, copyrights, trademarks,
service marks and trade names (other than those displayed in
the Company's restaurants as advertisements by a third party of such
third party's products) currently employed by it in connection with
the businesses now operated by it, and the Company has not received
any notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing which, alone or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, could result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company.
(t) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which it is engaged;
and the Company has no reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a comparable cost.
(u) The Company is not, will not become as a result of the
transactions contemplated hereby, and does not intend to conduct its
business in a manner that would cause it to become, an "investment
company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940.
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(v) Neither the Company nor any of the directors, officers,
employees or agents of the Company has taken and will not take,
directly or indirectly, any action designed to cause or result in, or
which has constituted or which might be expected to constitute,
stabilization or manipulation of the price of the Common Stock.
(w) The Shares have been approved for designation on the Nasdaq
National Market upon notice of issuance.
Any certificate signed by an officer of the Company and delivered to you
or to counsel for the Underwriters in connection with the Closing Date (as
hereinafter defined) shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
2. Representations and Warranties of the Selling Shareholder. The Selling
Shareholder represents and warrants to each Underwriter and agrees as follows
that:
(a) The Selling Shareholder at the Option Closing Date (defined
herein) will have valid and marketable title to the Shares set forth
in Schedule II to be sold by the Selling Shareholder, free and clear
of any liens, encumbrances, equities and claims (other than as
imposed by the Securities Act, state securities laws, the
Registration Rights Agreement by and among the Company, Xxxxx X.
Xxxxxxx, Xx., Xxxxxxx X. XxXxxxxxx, Xx. , Xxxxx X. Xxxxx, Xx.
("Xxxxx") and O'Charley's Inc., a Tennessee corporation, or this
Agreement), and full right, power and authority to effect the sale
and delivery of such Shares; and upon the delivery of and payment for
the Shares to be sold by the Selling Shareholder pursuant to this
Agreement, valid and marketable title thereto, free and clear of any
liens, encumbrances, equities and claims, will be transferred to the
Underwriters.
(b) The Selling Shareholder has duly executed and delivered the
Custody Agreement and Power of Attorney in the form previously
delivered to the Underwriters, appointing Xxxxx and Xxxxx X.
XxXxxxxx, and each of them as the Selling Shareholder's
attorney-in-fact (the "Attorney-in-Fact") and Xxxxxx Xxxxxxx Xxxxxx &
Xxxxx, A Professional Limited Liability Company, as custodian (the
"Custodian"). The Attorney-in-Fact is authorized to perform this
Agreement on behalf of the Selling Shareholder, to deliver the Shares
to be sold by the Selling Shareholder hereunder, to accept payment
therefor and otherwise to act on behalf of such Selling Shareholder
in connection with this Agreement. Certificates, in suitable form
for transfer by delivery or accompanied by duly executed instruments
of transfer or assignment in blank, representing the Shares to be
sold by the Selling Shareholder hereunder have been deposited with
the Custodian pursuant to the Custody Agreement for the purpose of
delivery pursuant to this Agreement. The Selling Shareholder agrees
that the shares of Common Stock represented by the certificates on
deposit with the Custodian are subject to the interest of the
Underwriters hereunder, that the arrangements made for such custody
and the appointment of the Attorney-in-Fact are to that extent
irrevocable, and that the obligations of the Selling Shareholder
hereunder
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shall not be terminated except as provided in this Agreement and the
Custody Agreement. If the Selling Shareholder should die or become
incapacitated or if any other event should occur, before the delivery
of the Shares of the Selling Shareholder hereunder, the certificates
for such Shares deposited with the Custodian shall be delivered by
the Custodian in accordance with the terms and conditions of this
Agreement as if such death, incapacity or other event had not
occurred, regardless of whether or not the Custodian or the
Attorney-in-Fact shall have received notice thereof.
(c) The Selling Shareholder, individually or acting through his
duly authorized Attorney-in-Fact, has duly executed and
delivered this Agreement and the Custody Agreement and Power of
Attorney; this Agreement constitutes a legal, valid and binding
obligation of the Selling Shareholder; all authorizations and
consents necessary for the execution and delivery of this Agreement
and the Custody Agreement and Power of Attorney on behalf of the
Selling Shareholder and for the sale and delivery of the Shares to be
sold by the Selling Shareholder hereunder has been given, except as
may be required by the Securities Act or state securities laws; and
the Selling Shareholder has the legal capacity and full right, power
and authority to execute this Agreement and the Custody Agreement and
Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement
and Power of Attorney and the consummation of the transactions
contemplated hereby and thereby by the Selling Shareholder will not
result in a breach or violation of, or conflict with, any of the
terms or provisions of, or constitute a default by the Selling
Shareholder under, any indenture, mortgage, deed of trust, trust
(constructive or other), loan agreement, lease, franchise, license or
other agreement or instrument to which the Selling Shareholder or any
of his or its properties is bound, any statute, or any judgment,
decree, order, rule or regulation of any court or governmental agency
or body applicable to the Selling Shareholder or any of his
properties; provided, however, with respect to violations of statutes
and rules and regulations regarding federal or state securities laws,
nothing contained in this Section 2(d) shall be deemed to modify the
representations set forth in Section 2(f) below.
(e) The Selling Shareholder has not distributed nor will
distribute any prospectus or other offering material in connection
with the offer and sale of the Shares other than any Preliminary
Prospectus filed with the Commission or the Final Prospectus or other
material permitted by the Securities Act.
(f) To the knowledge of the Selling Shareholder, the
representations and warranties of the Company contained in
Section 1 of this Agreement are true and correct; the Selling
Shareholder has reviewed and is familiar with the Registration
Statement as originally filed with the Commission and the Preliminary
Prospectus. To the knowledge of the Selling Shareholder, the
Preliminary Prospectus does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the
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statements therein, in the light of the circumstances under which
they were made, not misleading; the Selling Shareholder is not
prompted to sell the Shares to be sold by the Selling Shareholder by
any information concerning the Company that is not set forth in the
Preliminary Prospectus, the Effective Prospectus, or the Final
Prospectus.
(g) At the time the Registration Statement becomes effective (i)
such parts of the Registration Statement and any amendments and
supplements thereto as specifically refer to the Selling Shareholder
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (ii) such parts of the
Effective Prospectus and Final Prospectus as specifically refer to
the Selling Shareholder will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading.
(h) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory body, administrative
or other governmental body is necessary in connection with the
execution and delivery of this Agreement by the Selling Shareholder,
and the consummation by the Selling Shareholder of the transactions
herein contemplated (other than as required by the Securities Act,
state securities laws and the NASD).
(i) Any certificates signed by or on behalf of the Selling
Shareholder as such and delivered to the Underwriters or to counsel
for the Underwriters shall be deemed a representation and warranty by
the Selling Shareholder to each Underwriter as to the matters covered
thereby.
(j) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, the Selling Shareholder agrees to deliver to the
Underwriters prior to or at the Option Closing Date (as hereinafter
defined) a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified
by Treasury Department regulations in lieu thereof).
(k) The Selling Shareholder has not taken, and will not take,
directly or indirectly, any action designed to cause or result in, or
which might constitute or be expected to constitute, stabilization or
manipulation of the price of the Common Stock.
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3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, agreements
and covenants herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to the
Underwriters, and each of the Underwriters, severally and not
jointly, agrees to purchase at a purchase price of $______ per share,
the number of Firm Shares set forth opposite such Underwriter's name
in Schedule I hereto.
(b) The Company and the Selling Shareholder hereby grant to the
Underwriters an option to purchase, solely for the purpose of
covering over-allotments in the sale of Firm Shares, all or any
portion of the Option Shares, consisting of 100,000 shares by the
Company and 50,000 shares by the Selling Shareholder, at the purchase
price per share set forth above. The option granted hereby may be
exercised as to all or any part of the Option Shares at any time
within 30 days after the date of the Final Prospectus. The
Underwriters shall not be under any obligation to purchase any Option
Shares prior to the exercise of such option. The option granted
hereby may be exercised by the Underwriters by giving written notice
to the Company and the Selling Shareholder setting forth the number
of Option Shares to be purchased and the date and time for delivery
of and payment for such Option Shares and stating that the Option
Shares referred to therein are to be used for the purpose of covering
over-allotments in connection with the distribution and sale of the
Firm Shares. If such notice is given prior to the First Closing Date
(as defined herein), the date set forth therein for such delivery and
payment shall not be earlier than two full business days thereafter
or the First Closing Date, whichever occurs later. If such notice is
given on or after the First Closing Date, the date set forth therein
for such delivery and payment shall not be earlier than three full
business days thereafter. In either event, the date so set forth
shall not be more than four full business days after the date of such
notice. The date and time set forth in such notice is herein called
the "Option Closing Date." Upon exercise of the option, the Company
and the Selling Shareholder shall become obligated to sell to the
Underwriters, and, subject to the terms and conditions herein set
forth, the Underwriters shall become obligated to purchase, for the
account of each Underwriter, from the Company and the Selling
Shareholder, severally and not jointly, the number of Option Shares
specified in such notice. In the event the Underwriters elect to
purchase less than the full amount of the Option Shares, the
Underwriters shall purchase the first 50,000 Option Shares from the
Selling Shareholder.
(c) Certificates in definitive form for the Firm Shares which
each Underwriter has agreed to purchase hereunder shall be
delivered by or on behalf of the Company to the Underwriters for the
account of such Underwriters against payment by such Underwriters or
on their behalf of the purchase price therefor by certified or
official bank check or checks in next day funds to the order of the
Company, at the offices of X. X. Xxxxxxxx & Co., L.L.C. ("Bradford"),
000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, or at such other
place as may be agreed upon by Bradford and the Company, at 10:00
A.M., Nashville time, on the third full business day after this
Agreement becomes effective, or,
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at the election of the Underwriters, on the fourth full business day
after this Agreement becomes effective, if it becomes effective after
4:30 P.M. Eastern time, or at such other time not later than the
seventh full business day thereafter as the Underwriters and the
Company may determine, such time of delivery against payment being
herein referred to as the "First Closing Date." The First Closing
Date and the Option Closing Date are herein individually referred to
as the "Closing Date" and collectively referred to as the "Closing
Dates." Certificates in definitive form for the Option Shares which
each Underwriter shall have agreed to purchase hereunder shall be
similarly delivered by or on behalf of the Company and the Selling
Shareholder on the Option Closing Date. The certificates in
definitive form for the Shares to be delivered will be in good
delivery form and in such denominations and registered in such names
as Xxxxxxxx xxx request not less than 48 hours prior to the First
Closing Date or the Option Closing Date, as the case may be. Such
certificates will be made available for checking and packaging at a
location in New York, New York as may be designated by Bradford, at
least 24 hours prior to the First Closing Date or the Option Closing
Date, as the case may be. It is understood that Xxxxxxxx xxx (but
shall not be obligated to) make payment on behalf of any Underwriter
or Underwriters for the Shares to be purchased by such Underwriter or
Underwriters. No such payment shall relieve such Underwriter or
Underwriters from any of its or their obligations hereunder.
4. Offering by the Underwriters. After the Registration Statement becomes
effective, the Underwriters propose to offer for sale to the public the Firm
Shares and any Option Shares which may be sold at the price and upon the terms
set forth in the Final Prospectus.
5. Covenants of the Company and the Selling Shareholder.
(a) The Company covenants and agrees with each of the Underwriters
that:
(i) The Company shall comply with the provisions of and make
all requisite filings with the Commission pursuant to Rules 424
and 430A of the Rules and Regulations and shall notify the
Underwriters promptly (in writing, if requested) of all such
filings. The Company shall notify the Underwriters promptly of
any request by the Commission for any amendment of or
supplement to the Registration Statement, the Effective
Prospectus or the Final Prospectus or for additional
information; the Company shall prepare and file with the
Commission, promptly upon the Underwriters' request, any
amendments of or supplements to the Registration Statement, the
Effective Prospectus or the Final Prospectus which, in the
Underwriters' opinion, may be necessary or advisable in
connection with the distribution of the Shares; and the Company
shall not file any amendment of or supplement to the
Registration Statement, the Effective Prospectus or the Final
Prospectus which is not approved by the Underwriters after
reasonable notice thereof. The Company shall advise the
Underwriters promptly of the issuance by the Commission or any
jurisdiction or other regulatory body of
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any stop order or other order suspending the effectiveness of
the Registration Statement, suspending or preventing the use of
any Preliminary Prospectus, the Effective Prospectus or the
Final Prospectus or suspending the qualification of the Shares
for offering or sale in any jurisdiction, or of the institution
of any proceedings for any such purpose; and the Company shall
use its best efforts to prevent the issuance of any stop order
or other such order and, should a stop order or other such
order be issued, to obtain as soon as possible the lifting
thereof.
(ii) The Company will take or cause to be taken all
necessary action and furnish to whomever the Underwriters
direct such information as may be reasonably required in
qualifying the Shares for offer and sale under the securities
or Blue Sky laws of such jurisdictions as the Underwriters may
designate and will continue such qualifications in effect for
as long as may be reasonably necessary to complete the
distribution of the Shares.
(iii) Within the time during which a Final Prospectus
relating to the Shares is required to be delivered
under the Securities Act, the Company shall comply with all
requirements imposed upon it by the Securities Act, as now and
hereafter amended, and by the Rules and Regulations, as from
time to time in force, so far as is necessary to permit the
continuance of sales of or dealings in the Shares as
contemplated by the provisions hereof and the Final Prospectus.
If during such period any event occurs as a result of which the
Final Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances then existing, not misleading, or if
during such period it is necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the
Securities Act, the Company shall promptly notify the
Underwriters and shall amend the Registration Statement or
supplement the Final Prospectus (at the expense of the Company)
so as to correct such statement or omission or effect such
compliance.
(iv) The Company will furnish without charge to the
Underwriters and make available to the Underwriters copies of
the Registration Statement (four of which shall be signed and
shall be accompanied by all exhibits, including any which are
incorporated by reference, which have not previously been
furnished), each Preliminary Prospectus, the Effective
Prospectus and the Final Prospectus, and all amendments and
supplements thereto, including any prospectus or supplement
prepared after the effective date of the Registration
Statement, in each case as soon as available and in such
quantities as the Underwriters may reasonably request.
(vi) The Company will (A) deliver to the Underwriters at
such office or offices as the Underwriters may designate as
many copies of the Preliminary
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Prospectus and Final Prospectus as the Underwriters may
reasonably request, and (B) for a period of not more than nine
months after the Registration Statement becomes effective, send
to the Underwriters as many additional copies of the Final
Prospectus and any supplement thereto as the Underwriters may
reasonably request.
(vi) The Company shall make generally available to
its security holders, in the manner contemplated by Rule 158(b)
under the Securities Act as promptly as practicable and in any
event no later than 45 days after the end of its fiscal quarter
in which the first anniversary of the effective date of the
Registration Statement occurs, an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act covering
a period of at least 12 consecutive months beginning after the
effective date of the Registration Statement.
(vii) The Company will apply the net proceeds from
the sale of the Shares to be sold by it as set forth under the
caption "Use of Proceeds" in the Final Prospectus.
(viii) During a period of five years from the
effective date of the Registration Statement or such longer
period as the Underwriters may reasonably request, the Company
will furnish to the Underwriters copies of all reports and
other communications (financial or other) furnished by the
Company to its shareholders and, as soon as available, copies
of any reports or financial statements furnished or filed by
the Company to or with the Commission or any national
securities exchange on which any class of securities of the
Company may be listed.
(ix) The Company will, from time to time, after the
effective date of the Registration Statement file with the
Commission such reports as are required by the Securities Act,
the Exchange Act and the Rules and Regulations, and shall also
file with state securities commissions in states where the
Shares have been sold by the Underwriters (as the Underwriters
shall have advised the Company in writing) such reports as are
required to be filed by the securities acts and the regulations
of those states.
(x) Except pursuant to this Agreement or with the
Underwriters' written consent, for a period of 90 days from the
effective date of the Final Prospectus the Company will not,
and the Company has provided agreements executed by each of its
executive officers and directors providing that for a period of
90 days from the date of the Final Prospectus, such person or
entity will not, offer for sale, sell (other than pursuant to
the exercise of options granted pursuant to existing employee
benefit plans and agreements and existing stock options or
pursuant to bona fide gift transactions provided the donee is
subject to and agrees to be bound by such agreement), grant any
options (other than pursuant to existing
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employee benefit plans and agreements), rights or
warrants with respect to any shares of Common Stock, securities
convertible into Common Stock or any other capital stock of the
Company, or otherwise dispose of, directly or indirectly, any
shares of Common Stock or such other securities or capital
stock.
(xi) If at any time during the 25 day period after the
Registration Statement is declared effective, any rumor,
publication or event relating to or affecting the Company shall
occur as a result of which, in the Underwriters' opinion, the
market price for the Shares has been or is likely to be
materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment
of the Final Prospectus), the Company will, after written
notice from the Underwriters advising it as to the effect set
forth above, prepare, consult with the Underwriters concerning
the substance of and, subject to the Rules and Regulations,
disseminate a press release or other public statement,
reasonably satisfactory to the Underwriters, responding to or
commenting on such rumor, publication or event.
(xii) Neither the Company nor any of its officers,
directors or affiliates will take, directly or indirectly, any
action designed to cause or result in, or which might
constitute or be expected to constitute, stabilization or
manipulation of the price of the Common Stock.
(xiii) The Company will either conduct its business
and operations as described in the Final Prospectus or, if the
Company makes any material change to its business or operations
as so conducted, promptly disclose such change generally to its
security holders.
(b) The Selling Shareholder covenants and agrees with the
Underwriters that:
(i) For a period of 90 days from the effective date
of the Registration Statement, the Selling Shareholder will
not, directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of any shares of
Common Stock, other than to the Underwriters pursuant to this
Agreement or pursuant to bona fide gift transactions provided
the donee is subject to and agrees to be bound by such
agreement, without the prior written consent of the
Underwriters.
(ii) The Selling Shareholder will not take, directly
or indirectly, any action designed to cause or result in, or
which might constitute or be expected to constitute,
stabilization or manipulation of the price of the Common Stock.
6. Expenses. The Company and the Selling Shareholder agree with
the Underwriters that (a) whether or not the transactions contemplated by this
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Agreement are consummated or this Agreement becomes effective or is terminated,
the Company will pay all fees and expenses incident to the performance of the
obligations of the Company and the Selling Shareholder hereunder, including,
but not limited to, (i) the Commission's registration fee, (ii) the expenses of
printing (or reproduction) and distributing the Registration Statement
(including all amendments and exhibits thereto), each Preliminary Prospectus,
the Effective Prospectus, the Final Prospectus, any amendments or supplements
thereto, and this Agreement and other underwriting documents, including
Underwriter's Questionnaires, Underwriter's Powers of Attorney, Blue Sky
Memoranda, Agreements Among Underwriters and Selected Dealer Agreements, (iii)
fees and expenses of accountants and counsel for the Company, (iv) expenses of
qualification of the Shares under state Blue Sky and securities laws, including
the fees and disbursements of counsel to the Underwriters in connection
therewith, (v) filing fees paid or incurred by the Underwriters in connection
with filings with the NASD, (vi) expenses of listing the additional shares of
Common Stock on the Nasdaq National Market, (vii) all travel, lodging and
reasonable living expenses incurred by the Company in connection with
marketing, dealer and other meetings attended by the Company and the
Underwriters in marketing the Shares, (viii) the costs and charges of the
Company's transfer agent and registrar and the cost of preparing the
certificates for the Shares, and (ix) all other costs and expenses incident to
the performance of their obligations hereunder not otherwise provided for in
this Section; and (b) all out-of-pocket expenses, including counsel fees,
disbursements and expenses, incurred by the Underwriters in connection with
investigating, preparing to market and marketing the Shares and proposing to
purchase and purchasing the Shares under this Agreement, will be borne and paid
by the Company if the sale of the Shares provided for herein is not consummated
(i) by reason of the termination of this Agreement by the Company pursuant to
Section 14(a)(i), or (ii) by reason of the termination of this Agreement by the
Underwriters pursuant to Section 14(b)(ii) or because of any failure or refusal
on the part of the Company or the Selling Shareholder to comply with the terms
or fulfill any of the conditions of this Agreement.
The provisions of this section shall not affect any agreement that the
Company and the Selling Shareholder may have for the sharing of such costs and
expenses; provided, however, the Underwriters may deem the Company to be the
primary obligor with respect to all costs, fees, and expenses to be paid by the
Company and the Selling Shareholder.
7. Conditions of the Underwriters' Obligations. The respective
obligations of the Underwriters to purchase and pay for the Firm Shares shall
be subject, in their discretion, to the accuracy of the representations and
warranties of the Company and the Selling Shareholder herein as of the date
hereof and as of the Closing Date as if made on and as of the Closing Date, to
the accuracy of the statements of the Company's officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Shareholder of all of their covenants and agreements hereunder and to the
following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective not later than 5:30
P.M., Washington, D.C. time, on the day following the date of this
Agreement, or such later time and date as shall have been
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consented to by the Underwriters and all filings required by
Rule 424 and Rule 430A of the Rules and Regulations shall have been
made; no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened or, to the knowledge of the
Company or the Underwriters, shall be contemplated by the Commission;
any request of the Commission for additional information (to be
included in the Registration Statement or the Final Prospectus or
otherwise) shall have been complied with to the Underwriter's
satisfaction; and the NASD, upon review of the terms of the public
offering of the Shares, shall not have objected to such offering, such
terms or the Underwriters' participation in the same.
(b) No Underwriter shall have advised the Company that the
Registration Statement, Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or any supplement
thereto, contains an untrue statement of fact which, in the
Underwriters' reasonable judgment, is material, or omits to state a
fact which, in the Underwriters' reasonable judgment, is material and
is required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and the Company shall not have cured such untrue statement
of fact or omission.
(c) The Underwriters shall have received an opinion, dated
the Closing Date, from Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, A Professional
Limited Liability Company, counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the State
of Tennessee, with corporate power and authority to own its
properties and conduct its business as now conducted, and is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions where the failure to so
qualify would have a material adverse effect upon the Company.
To the best of such counsel's knowledge, the Company holds all
material licenses, certificates, permits, franchises and
authorizations from governmental authorities necessary for the
conduct of its business in all locations in which such business
is currently being conducted.
(ii) As of the dates specified therein, the Company
had authorized and issued capital stock as set forth under the
caption "Capitalization" in the Final Prospectus. All of the
outstanding shares of Common Stock (including the shares to be
sold by the Selling Shareholder) have been duly authorized and
are validly issued, fully paid and nonassessable, and the
Shares to be sold by the Company have been duly authorized, and
upon issuance thereof and payment therefor as provided herein,
will be validly issued, fully paid and nonassessable; none of
the issued shares have been issued in violation of or subject
to any preemptive rights provided for by law or by the
Company's charter. There are no preemptive rights
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or other rights to subscribe for or to purchase, or any
restriction upon the transfer of, the Shares pursuant to the
Company's charter, bylaws or other governing documents or any
agreement or other instrument to which the Company is a party
or by which it may be bound except as described in the
Effective Prospectus and Final Prospectus. Except as described
in the Effective Prospectus and Final Prospectus, neither the
filing of the Registration Statement nor the offer or sale of
the Shares as contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied,
for or relating to the registration of any shares of Common
Stock or any other securities of the Company. The Underwriters
will receive good and marketable title to the Shares to be
issued and delivered by the Company pursuant to this Agreement,
free and clear of all liens, encumbrances, claims, security
interests, restrictions, shareholders agreements and voting
trusts whatsoever. The capital stock of the Company and the
Shares conform in all material respects to the description
thereof contained in the Final Prospectus. All offers and
sales of the Company's securities prior to the date hereof were
at all relevant times duly registered or exempt from the
registration requirements of the Securities Act and were duly
registered or the subject of an exemption from the registration
requirements of applicable state securities or Blue Sky laws.
(iii) No consent, approval, authorization or order of
any court or governmental agency or body or third party is
required for the performance of this Agreement by the Company
or the Selling Shareholder or the consummation by the Company
or the Selling Shareholder of the transactions contemplated
hereby, except such as have been obtained under the Securities
Act and such as may be required by the NASD and under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters, as to which
such counsel need not express an opinion. The performance of
this Agreement by the Company and the consummation by the
Company of the transactions contemplated hereby will not
conflict with or result in a breach or violation by the Company
of any of the terms or provisions of, or constitute a default
by the Company under, any material indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument
known to such counsel to which the Company is a party or to
which the Company or its properties is subject, the charter or
bylaws of the Company, any statute, or any judgment, decree,
order, rule or regulation of any court or governmental agency
or body known to such counsel to be applicable to the Company
or any of its properties.
(iv) The sale of the Shares to be sold by the
Selling Shareholder hereunder and the compliance by the Selling
Shareholder with all of the provisions of this Agreement, the
Custody Agreement and the Power of Attorney 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
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a default under any material indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known
to such counsel to which the Selling Shareholder is a party or
by which the Selling Shareholder is bound or to which any of
the property or assets of the Selling Shareholder is subject,
or any statute, order, rule or regulation of any court or
governmental agency or body known to such counsel to be
applicable to the Selling Shareholder or the property of the
Selling Shareholder.
(v) The Company has full legal right, power and
authority to enter into this Agreement and to issue, sell and
deliver the Shares to be sold by it to the Underwriters as
provided herein. The Selling Shareholder has full right, power
and authority to sell, transfer and deliver such Shares
pursuant to this Agreement. By delivery of a certificate or
certificates therefor, the Selling Shareholder will transfer to
the Underwriters, who have purchased such shares pursuant to
this Agreement without notice of any defect in the title for
purposes of the Uniform Commercial Code, valid and marketable
title to such shares, free and clear of any pledge, lien,
security interest, charge, claim, equity, or encumbrance of any
kind.
(vi) This Agreement has been duly authorized,
executed and delivered by the Company and the Selling
Shareholder and constitutes the valid and legally binding
obligation of the Company and the Selling Shareholder
enforceable against each of the Company and the Selling
Shareholder in accordance with its terms, except as
enforceability may be limited by applicable equitable
principles (including public policy considerations as expressed
by the Commission) or by bankruptcy, insolvency, moratorium,
reorganization or similar laws from time to time in effect
affecting the enforcement of creditors' rights.
(vii) The Custody Agreement and Power of Attorney have
been duly executed and delivered by or on behalf of the Selling
Shareholder and constitute valid and binding agreements of the
Selling Shareholder in accordance with their terms, except as
enforceability may be limited by applicable equitable
principles (including public policy considerations as expressed
by the Commission) or by bankruptcy, insolvency, moratorium,
reorganization or similar laws from time to time in effect
affecting the enforcement of creditors' rights.
(viii) Except as described in the Final Prospectus,
there is not pending or, to the knowledge of such counsel,
threatened any action, suit, proceeding, inquiry or
investigation, to which the Company is a party, or to which the
property of the Company is subject, before or brought by any
court or governmental agency or body, which, if determined
adversely to the Company could result in any material adverse
change in the business, financial position, net worth or
results of
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operations, or could materially adversely affect the
properties or assets, of the Company.
(ix) No default exists, and no event has occurred
which with notice or after the lapse of time to cure or both,
would constitute a default, in the due performance and
observance of any term, covenant or condition of the charter or
bylaws of the Company, or to the best of such counsel's
knowledge, of any material indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which
the Company is a party or to which its properties are subject.
(x) To such counsel's knowledge, the Company is not
in violation of any law, ordinance, administrative or
governmental rule or regulation of Tennessee or the United
States applicable to the Company or any decree of any court or
governmental agency or body having jurisdiction over the
Company which would have a material adverse effect on the
Company. To such counsel's knowledge, the Company has complied
in all material respects with the applicable laws, rules, and
regulations relating to franchising in all jurisdictions where
the conduct of the Company's business requires such compliance,
except where such failure to comply would not have a material
adverse effect on the Company.
(xi) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder.
(xii) The Registration Statement and all
post-effective amendments thereto have become effective under
the Securities Act, and, to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or are threatened, pending or contemplated
by the Commission. All filings required by Rule 424 and Rule
430A of the Rules and Regulations have been made; the
Registration Statement, the Effective Prospectus and Final
Prospectus, and any amendments or supplements thereto, and the
documents incorporated by reference therein, as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Securities Act
and the Rules and Regulations (except that such counsel need
express no opinion as to financial statements, schedules and
other financial or statistical information included therein);
the descriptions in the Registration Statement, the Effective
Prospectus and the Final Prospectus of statutes, regulations,
legal and governmental proceedings, and contracts and other
documents are accurate in all material respects and present
fairly in all material respects the information required to be
stated therein; and such counsel does not know of any pending
or threatened legal or governmental proceedings, statutes or
regulations required to be described in the
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Final Prospectus which are not described as required
nor of any contracts or documents of a character required to
be described in the Registration Statement or the Final
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required.
In addition to the matters set forth above, such opinion shall also
include a statement to the effect that no facts have come to the attention of
such counsel that cause them to believe that the Registration Statement, the
Effective Prospectus and the Final Prospectus or any amendment or supplement
thereto contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made
(except that such counsel need express no view as to financial statements,
schedules and other financial or statistical information included therein).
(d) The Underwriters shall have received an opinion or
opinions, dated the Closing Date, of Bass, Xxxxx & Xxxx PLC, counsel
for the Underwriters, with respect to the Registration Statement and
the Final Prospectus, and such other related matters as the
Underwriters may require, and the Company shall have furnished to such
counsel such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters.
(e) The Underwriters shall have received from KPMG Peat
Marwick LLP, a letter dated the date hereof and, at the Closing Date, a
second letter dated the Closing Date, in form and substance
satisfactory to the Underwriters, stating that they are independent
public accountants with respect to the Company within the meaning of
the Securities Act and the applicable Rules and Regulations, and to the
effect that:
(i) In their opinion, the financial statements
examined by them and incorporated by reference in the
Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the published Rules and Regulations and are
presented in accordance with generally accepted accounting
principles and they have made a review in accordance with
standards established by the American Institute of Certified
Public Accountants of any interim consolidated financial
statements, selected financial data and/or condensed financial
statements derived from audited financial statements of the
Company;
(ii) The unaudited selected financial information
included in the Preliminary Prospectus and the Final Prospectus
under the captions "PROSPECTUS SUMMARY" and "SELECTED FINANCIAL
DATA" for the years ended December 26, 1993, December 25, 1994,
December 31, 1995, and December 29, 1996, and for the quarters
ended April 21, 1995 and April 20, 1997, agrees with the
corresponding amounts in the audited or unaudited financial
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statements included or incorporated by reference in the Final
Prospectus or previously reported on by them;
(iii) On the basis of a reading of the latest
available interim financial statements (unaudited) of the
Company, a reading of the minute books of the Company,
inquiries of officials of the Company responsible for financial
and accounting matters and other specified procedures, all of
which have been agreed to by the Underwriters, nothing came to
their attention that caused them to believe that:
(A) The amounts included in the Preliminary
Prospectus and the Final Prospectus under the captions
"Prospectus Summary" and "Selected Financial Data" for
the fiscal years ended December 26, 1993, December 25,
1994, December 31, 1995, and December 29, 1996, do not
agree with the corresponding amounts in the audited or
unaudited financial statements included or incorporated
by reference in the Final Prospectus previously
reported on by them;
(B) at a specified date not more than five
days prior to the date of delivery of such respective
letter, there was any change in the capital stock,
decline in shareholders' equity or increase in
long-term debt and capital lease obligations of the
Company, in each case as compared with amounts shown in
the latest balance sheets included in the Final
Prospectus, except in each case for changes, decreases
or increases which the Final Prospectus discloses have
occurred or may occur or which are described in such
letters; and
(C) for the period from the closing date of
the latest statements of earnings included in the
Effective Prospectus and the Final Prospectus to a
specified date not more than five days prior to the
date of delivery of such respective letter, there were
any decreases in net restaurant sales, net earnings,
pro forma net earnings, and pro forma net earnings per
share of the Company, in each case as compared with the
corresponding period of the preceding year, except in
each case for decreases which the Final Prospectus
discloses have occurred or may occur or which are
described in such letter.
(iv) They have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information specified by you
which are derived from the general accounting records of the
Company, which appear in the Effective Prospectus and the Final
Prospectus and have compared such amounts, percentages and
financial information with the accounting records of the
Company or to analyses and
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schedules prepared by the Company from its detailed accounting
records and found such amounts, percentages and financial
information to be in agreement with such records.
In the event that the letters to be delivered referred to above set forth
any such changes, decreases or increases, it shall be a further condition
to the obligations of the Underwriters that the Underwriters shall have
determined, after discussions with officers of the Company responsible for
financial and accounting matters and with KPMG Peat Marwick LLP, that such
changes, decreases or increases as are set forth in such letters do not reflect
a material adverse change in the shareholders' equity or long-term debt and
capital lease obligations of the Company as compared with the amounts shown in
the latest balance sheets of the Company included in the Final Prospectus, or a
material adverse change in net restaurant sales, net earnings or pro forma net
earnings of the Company, in each case as compared with the corresponding period
of the prior year.
(f) There shall have been furnished to the Underwriters a
certificate, dated the Closing Date and addressed to you, signed by the Chief
Executive Officer and by the Chief Financial Officer of the Company to the
effect that:
(i) the representations and warranties of the
Company in Section 1 of this Agreement are true and correct, as
if made at and as of the Closing Date, and the Company has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior
to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceedings
for that purpose have been initiated or are pending, or to
their knowledge, threatened under the Securities Act;
(iii) all filings required by Rule 424 and Rule 430A
of the Rules and Regulations have been made;
(iv) they have carefully examined the Registration
Statement, the Effective Prospectus and the Final Prospectus,
and any amendments or supplements thereto, and such documents
do not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances under which they were made; and
(v) since the effective date of the Registration
Statement, there has occurred no event required to be set forth
in an amendment or supplement to the Registration Statement,
the Effective Prospectus or the Final Prospectus which has not
been so set forth.
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(g) The representations and warranties of the Selling
Shareholder shall be true and correct as of the Closing Date, and the
Selling Shareholder shall deliver to the Underwriters a certificate to
that effect, dated the Closing Date, signed by the Selling Shareholder
or his duly appointed Attorney-in-Fact.
(h) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, and except as stated therein, the Company has not sustained
any material loss or interference with its business or properties from
fire, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any court or
governmental action, order or decree, or become a party to or the
subject of any litigation which is material to the Company taken as a
whole, nor shall there have been any material adverse change, or any
development involving a prospective material adverse change, in the
business, properties, key personnel, capitalization, net worth, results
of operations or condition (financial or other) of the Company taken as
a whole, which loss, interference, litigation or change, in the
Underwriters' reasonable judgment shall render it inadvisable to
commence or continue the offering of the Shares at the offering price
to the public set forth on the cover page of the Prospectus or to
proceed with the delivery of the Shares.
(i) The shares shall be listed on the Nasdaq
National Market.
All such opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are reasonably satisfactory to the Underwriters and their counsel. The Company
shall furnish to the Underwriters such conformed copies of such opinions,
certificates, letters and documents in such quantities as the Underwriters
shall reasonably request.
The respective obligations of the Underwriters to purchase and pay for
the Option Shares shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Shares, except that all references to
the "Closing Date" shall be deemed to refer to the Option Closing Date, if it
shall be a date other than the Closing Date.
8. Condition of the Company's and the Selling Shareholder's
Obligations. The obligations hereunder of the Company and the Selling
Shareholder are subject to the condition set forth in Section 7(a) hereof.
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9. Indemnification and Contribution.
(a) The Company and the Selling Shareholder, jointly and
severally, agree to indemnify and hold harmless each Underwriter, and
each person, if any, who controls any Underwriter within the meaning of
the Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based in whole or in part upon (i) any inaccuracy
in the representations and warranties of the Company contained herein,
(ii) any failure of the Company to perform its obligations hereunder or
under law or (iii) any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Effective Prospectus or Final Prospectus,
or any amendment or supplement thereto, or in any Blue Sky Application
or other written information furnished by the Company or the Selling
Shareholder filed in any state or other jurisdiction in order to
qualify any or all of the Shares under the securities laws thereof,
complete copies of which have been provided to the Company (a "Blue Sky
Application"), or arise out of or are based upon the omission or
alleged omission to state in the Registration Statement, any
Preliminary Prospectus, the Effective Prospectus or Final Prospectus or
any amendment or supplement thereto or any Blue Sky Application a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter
and each such controlling person for any legal or other expenses
reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that neither the Company nor the Selling Shareholder will be
liable in any such case to the extent that any such loss, claim,
damage, or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Preliminary Prospectus, the
Effective Prospectus or Final Prospectus or such amendment or such
supplement or any Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter specifically for use therein (it being understood that the
only information so provided is the information included in the last
paragraph on the cover page and in the first, third and fourth
paragraphs and the last sentence of the fifth paragraph under the
caption "Underwriting" in any Preliminary Prospectus and the Final
Prospectus and the Effective Prospectus, and the information provided
by or relating to the Underwriters set forth in the Blue Sky
Applications). In no event, however, shall the liability of any
Selling Shareholder for indemnification under this Section 9(a) exceed
the lesser of (i) that proportion of the total of such losses, claims,
damages or liabilities indemnified against equal to the proportion of
the total Shares sold hereunder which is being sold by the Selling
Shareholder or (ii) the proceeds received by the Selling Shareholder
from the Underwriters hereunder. This indemnity agreement will be in
addition to any liability which the Company or the Selling Shareholder
may otherwise have.
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(b) Each Underwriter will indemnify and hold harmless the
Selling Shareholder and the Company, each of its directors, each of its
officers who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of the Securities Act
against any losses, claims, damages or liabilities to which the Company
or any such director, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Effective Prospectus or Final Prospectus, or any
amendment or supplement thereto, or any Blue Sky Application, or arise
out of or are based upon the omission or the alleged omission to state
in the Registration Statement, any Preliminary Prospectus, the
Effective Prospectus or Final Prospectus or any amendment or supplement
thereto or any Blue Sky Application a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
specifically for use therein (it being understood that the only
information so provided is the information included in the last
paragraph on the cover page and in the first, third and fourth
paragraphs and the last sentence of the fifth paragraph under the
caption "Underwriting" in any Preliminary Prospectus and in the
Effective Prospectus and the Final Prospectus, and the information
provided by or relating to the Underwriters set forth in the Blue Sky
Applications);
(c) Promptly after receipt by an indemnified party under
this Section 9 of notice of the commencement of any action, including
governmental proceedings, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 9 notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
otherwise than under this Section 9. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified
party; and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under
this Section 9 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other
than reasonable costs of investigation except that the indemnified
party shall have the right to employ separate counsel if, the
indemnified party shall have reasonably concluded that there may be a
conflict of interest between the indemnifying party or parties or
counsel selected by the indemnifying party to conduct such defense and
the indemnified party in the conduct of its defense of such action and
in that event the reasonable fees and expenses of one separate counsel
shall be paid by the indemnifying party.
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(d) In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in the
preceding part of this Section 9 is for any reason held to be
unavailable to the Underwriters, the Company or the Selling Shareholder
or is insufficient to hold harmless an indemnified party, then the
Company and the Selling Shareholder shall contribute to the damages
paid by the Underwriters, and the Underwriters shall contribute to the
damages paid by the Company and the Selling Shareholder; provided,
however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. In determining the amount of contribution to which
the respective parties are entitled, there shall be considered the
relative benefits received by each party from the offering of the
Shares (taking into account the portion of the proceeds of the offering
realized by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. The Company, the Selling Shareholder and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even
if the Underwriters were treated as one entity for such purpose). No
Underwriter or person controlling such Underwriter shall be obligated
to make contribution hereunder which in the aggregate exceeds the
underwriting discount applicable to the Shares purchased by such
Underwriter under this Agreement, less the aggregate amount of any
damages which such Underwriter and its controlling persons have
otherwise been required to pay in respect of the same or any similar
claim, and the Selling Shareholder shall not be obligated to contribute
an amount in excess of the aggregate amount for which the Selling
Shareholder is obligated to provide indemnity pursuant to Section 9(a)
above. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and
not joint. For purposes of this Section, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the
Securities Act, shall have the same rights to contribution as the
Company.
(e) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any
indemnified party is a party or is (or would be, if a claim were to be
made against such indemnified party) entitled to indemnity hereunder,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
10. Default of Underwriters. If either Underwriter defaults in its
obligation to purchase Shares hereunder and if the total number of Shares which
such defaulting Underwriter agreed but
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failed to purchase is ten percent or less of the total number of Shares
to be sold hereunder, the non-defaulting Underwriter shall be obligated
severally to purchase, the Shares which such defaulting Underwriter agreed but
failed to purchase. If either Underwriter so defaults and the total number of
Shares with respect to which such default or defaults occur is more than ten
percent of the total number of Shares to be sold hereunder, and arrangements
satisfactory to the other Underwriter, the Company and the Selling Shareholder
for the purchase of such Shares by other persons (who may include the
non-defaulting Underwriter) are not made within 36 hours after such default,
this Agreement, insofar as it relates to the sale of the Shares, will terminate
without liability on the part of the non-defaulting Underwriter or the Company
except for (i) the provisions of Section 9 hereof, and (ii) the expenses to be
paid or reimbursed by the Company and the Selling Shareholder pursuant to
Section 6. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10. Nothing herein
shall relieve a defaulting Underwriter from liability for its default.
11. Default by the Selling Shareholder. If the Selling Shareholder
shall fail to sell and deliver the number of Option Shares that the Selling
Shareholder is obligated to sell, the Underwriters may, at their option, by
notice to the Company, either (a) require the Company to sell and deliver such
number of shares of Common Stock as to which the Selling Shareholder has
defaulted, or (b) elect to purchase the Firm Shares and the Option Shares that
the Company has agreed to sell pursuant to this Agreement.
In the event of a default under this Section that does not result in
the termination of this Agreement, either the Underwriters or the Company shall
have the right to postpone the First Closing Date or Option Closing Date for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
No action taken pursuant to this Section shall relieve the Company or the
Selling Shareholder from liability, if any, in respect of such default.
12. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Selling
Shareholder, the Company, its officers and the Underwriters set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (a) any
investigation made by or on behalf of the Company, any of its officers or
directors, any Underwriter or any controlling person, (b) any termination of
this Agreement and (c) delivery of and payment for the Shares.
13. Effective Date. This Agreement shall become effective at
whichever of the following times shall first occur: (i) at 11:30 A.M.,
Washington, D.C. time, on the next full business day following the date on
which the Registration Statement becomes effective or (ii) at such time after
the Registration Statement has become effective as the Underwriters shall
release the Firm Shares for sale to the public; provided, however, that the
provisions of Sections 6, 9, 12 and 13 hereof shall at all times be effective.
For purposes of this Section 13, the Firm Shares shall be deemed to have been
so released upon the release by the Underwriters for publication,
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at any time after the Registration Statement has become effective, of
any newspaper advertisement relating to the Firm Shares or upon the release by
the Underwriters of telegrams offering the Firm Shares for sale to securities
dealers, whichever may occur first.
14. Termination.
(a) The Company's obligations under this Agreement may be
terminated by the Company by notice to the Underwriters (i) at any time
before it becomes effective in accordance with Section 13 hereof, or
(ii) in the event that the condition set forth in Section 8 shall not
have been satisfied at or prior to the First Closing Date.
(b) This Agreement may be terminated by the Underwriters by
notice to the Company (i) at any time before it becomes effective in
accordance with Section 13 hereof; (ii) in the event that at or prior
to the First Closing Date the Company or the Selling Shareholder shall
have failed, refused or been unable to perform any agreement on the
part of the Company or the Selling Shareholder to be performed
hereunder or any other condition to the obligations of the Underwriters
hereunder is not fulfilled; (iii) if at or prior to the Closing Date
trading in securities on the New York Stock Exchange, the American
Stock Exchange or the over-the-counter market shall have been suspended
or materially limited or minimum or maximum prices shall have been
established on either of such exchanges or such market, or a banking
moratorium shall have been declared by Federal or state authorities;
(iv) if at or prior to the Closing Date trading in securities of the
Company shall have been suspended; or (v) if there shall have been such
a material adverse change in general economic, political or financial
conditions or if the effect of international conditions on the
financial markets in the United States shall be such as, in your
reasonable judgment, makes it inadvisable to commence or continue the
offering of the Shares at the offering price to the public set forth on
the cover page of the Prospectus or to proceed with the delivery of the
Shares.
(c) Termination of this Agreement pursuant to this Section
14 shall be without liability of any party to any other party other
than as provided in Sections 6 and 9 hereof.
15. Notices. All communications hereunder shall be in writing and,
if sent to the Underwriters, shall be mailed or delivered or telegraphed and
confirmed in writing to X.X. Xxxxxxxx & Co., L.L.C., X.X. Xxxxxxxx Financial
Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxx X.
Xxxxxx, and to Equitable Securities Corporation, 000 Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx, if sent to the Company
or the Selling Shareholder shall be mailed, delivered or telegraphed and
confirmed in writing to the Company at 000 Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxx X. Xxxxx, Xx.
16. Miscellaneous. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company and the Selling Shareholder
and their respective successors and
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legal representatives. Nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Company and the Selling Shareholder and
the Underwriters and for the benefit of no other person except that (a) the
representations and warranties of the Company and the Selling Shareholder
contained in this Agreement shall also be for the benefit of any person or
persons who control any Underwriter within the meaning of Section 15 of the
Securities Act, and (b) the indemnities by the Underwriters shall also be for
the benefit of the directors of the Company, officers of the Company who have
signed the Registration Statement and any person or persons who control the
Company within the meaning of Section 15 of the Securities Act. No purchaser
of Shares from any Underwriter will be deemed a successor because of such
purchase. The validity and interpretation of this Agreement shall be governed
by the laws of the State of Tennessee. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please indicate your acceptance thereof in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement among the Company, the Selling Shareholder and each of the
Underwriters.
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Very truly yours,
XXXXX'X ROADHOUSE, INC.
By:
------------------------
Title:
---------------------
Confirmed and accepted as of the
date first above written.
UNDERWRITERS:
X. X. XXXXXXXX & CO., L.L.C.
By:
-----------------------------
Title:
------------------
EQUITABLE SECURITIES CORPORATION
By:
-----------------------------
Title:
------------------
SELLING SHAREHOLDER:
----------------------
Xxxxx X. Xxxxx, Xx.
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SCHEDULE I
UNDERWRITERS
Number of Firm Shares
Underwriter to Be Purchased
----------- ---------------
X.X. Xxxxxxxx & Co., L.L.C. ..........................
---------------
Equitable Securities Corporation .....................
TOTAL
===============
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SCHEDULE II
Selling Shareholder
Number of Firm Number of Option
Shares To Be Shares To Be
Name Sold Sold
---- ---- ----
Xxxxx X. Xxxxx, Xx. ................ -- 50,000
33
