1
Draft of 3/4/96
$200,000,000
OLSTEN CORPORATION
______% SENIOR NOTES DUE 2006
UNDERWRITING AGREEMENT
March ___, 1996
XXXXX XXXXXX INC.
XXXXX SECURITIES, INC.
PRUDENTIAL SECURITIES INCORPORATED
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Olsten Corporation, a Delaware corporation (the "Company"), proposes,
upon the terms and conditions set forth herein, to issue and sell $200,000,000
aggregate principal amount of its _____% Senior Notes due 2006 (the "Notes") to
you, Xxxxx Xxxxxx Inc., Xxxxx Securities, Inc. and Prudential Securities
Incorporated (the "Underwriters"). The Notes will be issued pursuant to the
provisions of an Indenture to be dated as of March 15, 1996 (the "Indenture")
between the Company and First Union National Bank, as Trustee (the "Trustee").
The Company wishes to confirm as follows its agreement with you in
connection with the several purchases by you of the Notes.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 under the Act
(the "registration statement"), including a prospectus subject to completion,
relating to the Notes. The term "Registration Statement" as used in this
Agreement means the registration statement (including all financial schedules
and exhibits), as amended at the time it becomes effective, or, if the
registration statement became effective prior to the execution of this
Agreement, as supplemented or amended prior to the execution of this Agreement.
If it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to the registration statement will be filed and must
be declared effective before the offering of the Notes may commence, the term
"Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. If an additional
registration statement is prepared and filed with the Commission in accordance
with Rule 462(b) under the Act (an "Additional Registration Statement"), the
term "Registration Statement" as used in this Agreement includes the Additional
Registration Statement. The term "Prospectus" as used in this Agreement means
the prospectus in the form included in the Registration Statement, or, if the
prospectus included in the Registration Statement omits information in reliance
on Rule 430A under the Act and such information is included in a prospectus
filed with the Commission pursuant to Rule 424(b) under the Act, the term
"Prospectus" as used in this Agreement means the prospectus in the form
included in the Registration Statement as supplemented by the addition of the
Rule 430A information contained in the prospectus filed with the Commission
pursuant to Rule 424(b). The term "Prepricing Prospectus" as used in this
Agreement means the prospectus subject to completion in the form included in
the registration statement at the time of the initial filing of the
registration statement with the Commission, and as such prospectus shall have
been amended from time to time prior to the date of the Prospectus. Any
reference in this Agreement to the registration statement, the Registration
2
Statement, any Prepricing Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Form
S-3 under the Act, as of the date of the registration statement, the
Registration Statement, such Prepricing Prospectus or the Prospectus, as the
case may be, and any reference to any amendment or supplement to the
registration statement, the Registration Statement, any Prepricing Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed
after such date under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") which, upon filing, are incorporated by reference therein, as
required by Form S-3. As used herein, the term "Incorporated Documents" means
the documents which at the time are incorporated by reference in the
registration statement, the Registration Statement, any Prepricing Prospectus,
the Prospectus, or any amendment or supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees,
subject to all the terms and conditions set forth herein, to issue and sell to
each Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of ______% of the
principal amount thereof, the principal amount of Notes set forth opposite the
name of such Underwriter in Schedule I hereto (or such principal amount of
Notes increased as set forth in Section 10 hereof).
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Notes as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and initially
to offer the Notes upon the terms set forth in the Prospectus.
4. DELIVERY OF THE NOTES AND PAYMENT THEREFOR. Delivery to the
Underwriters of and payment for the Notes shall be made at the office of Xxxxx
Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M., New York
City time, on March __, 1996 (the "Closing Date"). The place of closing for
the Notes and the Closing Date may be varied by agreement between you and the
Company.
The Notes will be delivered to you against payment of the purchase
price therefor specified in Section 2 hereof by wire transfer to an account
previously designated to Xxxxx Xxxxxx Inc. by the Company of Federal (same day)
funds and registered in such names and in such denominations as you shall
request prior to 1:00 P.M., New York City time, on the second business day
preceding the Closing Date. The Notes to be delivered to the Underwriters
shall be made available to you in New York City for inspection and packaging
not later than 9:30 A.M., New York City time, on the business day next
preceding the Closing Date.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters as follows:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or a
post-effective amendment thereto or any Additional Registration
Statement to be declared effective before the offering of the Notes
may commence, the Company will endeavor to cause the Registration
Statement or such post-effective amendment to become effective as soon
as possible and will advise you promptly and, if requested by you,
will confirm such advice in writing, when the Registration Statement
or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if
requested by you, will confirm such advice in writing: (i) of any
request by the Commission for amendment of or a supplement to the
Registration Statement, any Prepricing Prospectus or the Prospectus or
for additional information; (ii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Notes for
offering or sale in any jurisdiction or the initiation of any
proceeding for such purpose; and (iii) within the period of time
referred to in paragraph (f) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net
worth or results of operations, or of the happening of any event,
which makes any material statement made in the Registration Statement
or the Prospectus (as then amended or supplemented) untrue or which
requires the making of any additions to or changes in the Registration
Statement or the Prospectus (as then amended or supplemented) in order
to state a material fact
2
3
required by the Act or the regulations thereunder to be stated therein
or necessary in order to make the statements therein not misleading,
or of the necessity to amend or supplement the Prospectus (as then
amended or supplemented) to comply with the Act or any other law. If
at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will make
every reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(c) The Company will furnish to you, without charge (i)
four signed copies of the registration statement as originally filed
with the Commission and of each amendment thereto, including financial
statements and all exhibits to the registration statement, (ii) such
number of conformed copies of the registration statement as originally
filed and of each amendment thereto, but without exhibits, as you may
request, (iii) such number of copies of the Indenture and of the
Incorporated Documents, without exhibits, as you may request, and (iv)
four copies of the exhibits to the Incorporated Documents.
(d) The Company will not file any amendment to the
Registration Statement or make any amendment or supplement to the
Prospectus or, prior to the end of the period of time referred to in
the first sentence in subsection (f) below, file any document which,
upon filing becomes an Incorporated Document, of which you shall not
previously have been advised or to which, after you shall have
received a copy of the document proposed to be filed, you shall
reasonably object.
(e) Prior to the execution and delivery of this
Agreement, the Company has delivered to you, without charge, in such
quantities as you have requested, copies of each form of the
Prepricing Prospectus. The Company consents to the use, in accordance
with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions in which the Notes are offered by the
several Underwriters and by dealers, prior to the date of the
Prospectus, of each Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this
Agreement as possible and thereafter from time to time for such period
as in the opinion of counsel for the Underwriters a prospectus is
required by the Act to be delivered in connection with sales by any
Underwriter or dealer, the Company will expeditiously deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may
request. The Company consents to the use of the Prospectus (and of
any amendment or supplement thereto) in accordance with the provisions
of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Notes are offered by the several
Underwriters and by all dealers to whom Notes may be sold, both in
connection with the offering and sale of the Notes and for such period
of time thereafter as the Prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer. If
during such period of time any event shall occur that in the judgment
of the Company or in the opinion of counsel for the Underwriters is
required to be set forth in the Prospectus (as then amended or
supplemented) or should be set forth therein in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary to supplement or
amend the Prospectus (or to file under the Exchange Act any document
which, upon filing, becomes an Incorporated Document) in order to
comply with the Act or any other law, the Company will forthwith
prepare and, subject to the provisions of paragraph (d) above, file
with the Commission an appropriate supplement or amendment thereto (or
to such document), and will expeditiously furnish to the Underwriters
and dealers a reasonable number of copies thereof. In the event that
the Company and you agree that the Prospectus should be amended or
supplemented, the Company, if requested by you, will promptly issue a
press release announcing or disclosing the matters to be covered by
the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel
for the Underwriters in connection with the registration or
qualification of the Notes for offering and sale by the several
Underwriters and by dealers under the securities or Blue Sky laws of
such jurisdictions as you may designate and will file such consents to
service of process or other documents necessary or appropriate in
order to effect such registration or qualification; provided that in
no event shall the Company be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take any
action which would subject it to service of process in suits, other
than those arising out of the offering or sale of the Notes, in any
jurisdiction where it is not now so subject.
3
4
(h) The Company will make generally available to its
security holders a consolidated earnings statement, which need not be
audited, covering a twelve-month period commencing after the effective
date of the Registration Statement and ending not later than 15 months
thereafter, as soon as practicable after the end of such period, which
consolidated earnings statement shall satisfy the provisions of
Section 11(a) of the Act.
(i) So long as any of the Notes are outstanding, the
Company will furnish to you (i) as soon as available, a copy of each
report of the Company mailed to stockholders or filed with the
Commission, and (ii) from time to time such other information
concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be
terminated after execution pursuant to any provision hereof (otherwise
than pursuant to the second paragraph of Section 10 hereof or by
notice given by you terminating this Agreement pursuant to Section 10
or Section 11 hereof) or if this Agreement shall be terminated by the
Underwriters because of any failure or refusal on the part of the
Company to comply with the terms or fulfill any of the conditions of
this Agreement, the Company agrees to reimburse the Underwriters for
all out-of-pocket expenses reasonably incurred (including reasonable
fees and expenses of counsel for the Underwriters) incurred by you in
connection herewith.
(k) The Company will apply the net proceeds from the sale
of the Notes substantially in accordance with the description set
forth in the Prospectus.
(l) If Rule 430A of the Act is employed, the Company will
timely file the Prospectus pursuant to Rule 424(b) under the Act and
will advise you of the time and manner of such filing.
(m) Except as stated in this Agreement and in the
Prepricing Prospectus and Prospectus, the Company has not taken, nor
will it take, directly or indirectly, any action designed to or that
might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Notes to facilitate the sale or
resale of the Notes.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment
or supplement thereto, or filed pursuant to Rule 424 under the Act,
complied when so filed in all material respects with the provisions of
the Act. The Commission has not issued any order preventing or
suspending the use of any Prepricing Prospectus.
(b) The Company and the transactions contemplated by this
Agreement meet the requirements for using Form S-3 under the Act. The
Registration Statement in the form in which it became or becomes
effective and also in such form as it may be when any post-effective
amendment thereto or any Additional Registration Statement shall
become effective and the Prospectus and any supplement or amendment
thereto when filed with the Commission under Rule 424(b) under the
Act, complied or will comply in all material respects with the
provisions of the Act and will not at any such times 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, except that this representation and warranty does not
apply to statements in or omissions from the registration statement or
the prospectus made in reliance upon and in conformity with (i)
information relating to any Underwriter furnished to the Company in
writing by or on behalf of such Underwriter expressly for use therein,
or (ii) the Trustee's Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of 1939, as amended (the "1939
Act").
(c) The Incorporated Documents heretofore filed were
filed in a timely manner and, when they were filed (or, if any
amendment with respect to any such document was filed, when such
amendment was filed), conformed in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder, and any further Incorporated Documents so filed will, when
they are filed, conform in all material
4
5
respects with the requirements of the Exchange Act and the rules and
regulations thereunder; no such document when it was filed (or, if an
amendment with respect to any such document was filed, when such
amendment was filed), contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and
no such further document, when it is filed, will contain an untrue
statement of a material fact or will omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading.
(d) The Indenture has been duly and validly authorized
and, upon its execution and delivery by the Company and assuming due
execution and delivery by the Trustee, will be a valid and binding
agreement of the Company, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
or other similar laws affecting creditors' rights generally and by
general equitable principles, and has been (or will have been) duly
qualified under the 1939 Act and conforms to the description thereof
in the Registration Statement and the Prospectus.
(e) The Notes have been duly authorized and, when
executed by the Company and authenticated by the Trustee in accordance
with the Indenture and delivered to you against payment therefor in
accordance with the terms hereof, will have been validly issued and
delivered, and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles, and the Notes will conform to the description thereof in
the Registration Statement and the Prospectus.
(f) All the outstanding shares of Common Stock of the
Company have been duly authorized and validly issued, are fully paid
and nonassessable and are free of any preemptive or similar rights and
were issued and sold in compliance with all applicable federal and
state securities laws. The authorized and outstanding capital stock
of the Company conforms to the description thereof in the Registration
Statement and the Prospectus.
(g) The Company is a corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where any failure or failures so to register or qualify, singly
or in the aggregate, would not have a material adverse effect on the
condition (financial or other), business, properties, net worth or
results of operations of the Company and the Subsidiaries (as
hereinafter defined) taken as a whole.
(h) All the Company's subsidiaries (collectively, the
"Subsidiaries") are listed in an exhibit to the Company's Annual Report
on Form 10-K which is incorporated by reference into the Registration
Statement. Each Subsidiary is a corporation duly organized, validly
existing and in good standing in the jurisdiction of its incorporation,
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where any failure
or failures so to register or qualify, singly or in the aggregate,
would not have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of
such Subsidiary; all the outstanding shares of capital stock of each of
the Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable, and, other than the subsidiaries of
Olsten International B.V. (certain of which are majority-owned
subsidiaries of the Company) and Subsidiaries which operate businesses
in Argentina and Mexico, are owned by the Company directly, or
indirectly through one of the other Subsidiaries, free and clear of any
lien, adverse claim, security interest, equity or other encumbrance.
Other than Olsten Home HealthCare, Inc., Xxxxxxxx Home Health Care,
Inc., Olsten Certified HealthCare Corp., IMI Systems, Inc. and Olsten
International B.V. (each, a "Material Subsidiary" and collectively, the
"Material Subsidiaries"), the other Subsidiaries of the Company would
not in the aggregate constitute a "significant subsidiary" as defined
in Regulation S-X promulgated under the Act.
5
6
(i) There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened, against the
Company or any of the Subsidiaries, or to which the Company or any of
the Subsidiaries or any of their respective properties is subject,
that are required to be described in the Registration Statement or the
Prospectus but are not described as required, and except as described
in the Registration Statement or the Prospectus, no pending or
threatened proceedings, individually or in the aggregate, are likely
to have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of
the Company and the Subsidiaries taken as a whole. Neither the
Company nor any Subsidiary is involved in any material strike, job
action or labor dispute, and, to the best of the Company's knowledge,
no such action or dispute is threatened. There are no agreements,
contracts, indentures, leases or other instruments that are required
to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement or any
Incorporated Document that are not described or filed as required by
the Act or the Exchange Act, and all such agreements and other
instruments are in full force and effect and are binding on the
parties thereto, except as otherwise described in the Prospectus.
(j) Neither the Company nor any of the Subsidiaries is in
violation of its certificate or articles of incorporation or by-laws,
or other organizational documents, or of any law, ordinance,
administrative or governmental rule or regulation applicable to the
Company or any of the Subsidiaries or of any decree of any court or
governmental agency or body having jurisdiction over the Company or
any of the Subsidiaries, or in default in any material respect in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
material agreement, indenture, lease or other instrument to which the
Company or any of the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound, except where any
such violations or defaults, singly or in the aggregate, would not
have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the
Company and the Subsidiaries taken as a whole, and no condition or
state of facts exists, which, with the passage of time or the giving
of notice or both, would constitute such a violation or default.
(k) Neither the issuance, offer, sale or delivery of the
Notes, the execution, delivery or performance of this Agreement and
the Indenture by the Company, compliance by the Company with the
provisions hereof and thereof, nor the consummation by the Company of
the transactions contemplated hereby and thereby (i) requires any
consent, approval, authorization or other order of or registration or
filing with, any court, regulatory body, administrative agency or
other governmental body, agency or official (except such as may be
required for the registration of the Notes under the Act,
qualification of the Indenture under the 1939 Act, and compliance with
the securities or Blue Sky laws of various jurisdictions, all of which
have been or will be effected in accordance with this Agreement), or
(ii) conflicts or will conflict with or constitutes or will constitute
a breach of, or a default under, the certificate or articles of
incorporation or bylaws, or other organizational documents, of the
Company or any of the Subsidiaries or conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under, any
agreement, indenture, lease or other instrument to which the Company
or any of the Subsidiaries is a party or by which any of them or any
of their respective properties may be bound, or violates or will
violate any Permit (as hereinafter defined) or any statute, law,
regulation or filing or judgment, injunction, order or decree
applicable to the Company or any of the Subsidiaries or any of their
respective properties, except where any such conflicts, breaches,
defaults or violations, singly or in the aggregate, would not have a
material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the
Company and the Subsidiaries taken as a whole, or (iii) will result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Subsidiaries pursuant
to the terms of any agreement or instrument to which any of them is a
party or by which any of them may be bound or to which any of the
property or assets of any of them is subject.
(l) The accountants, Xxxxxxx & Xxxxxxx L.L.P., who have
certified or shall certify the financial statements and related
schedules included or incorporated by reference in the Registration
Statement and the Prospectus (or any amendment or supplement thereto)
are independent public accountants as required by the Act and the
Exchange Act.
6
7
(m) The financial statements, together with related
schedules and notes, included or incorporated by reference in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of
the Company and the Subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the respective
periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and
statistical information and data included or incorporated by reference
in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are accurately presented and prepared on a basis
consistent with such financial statements and the books and records of
the Company and the Subsidiaries. The pro forma financial statements
and other pro forma financial information (including the notes
thereto) included or incorporated by reference in the Registration
Statement and the Prospectus (or any amendment or supplement thereto)
present fairly the information shown therein, have been prepared in
accordance with applicable requirements of the Act (including Article
11 of Regulation S-X), have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly computed on the basis described
therein. The assumptions used in preparation of the pro forma
financial statements and other pro forma financial information
included in the Registration Statement and the Prospectus (or any
amendment or supplement thereto) are reasonable, and the adjustments
used therein are reasonably appropriate to give effect to the
transactions or circumstances referred to therein.
(n) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement; the execution and delivery of, and the performance by the
Company of its obligations under, this Agreement have been duly and
validly authorized by the Company; and this Agreement has been duly
executed and delivered by the Company and constitutes the valid and
legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as rights to indemnity
and contribution hereunder may be limited by federal or state
securities laws.
(o) Except as disclosed or contemplated in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto), subsequent to the respective dates as of which
such information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), neither the
Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not
in the ordinary course of business, that is material to the Company
and the Subsidiaries taken as a whole, and there has not been any
change in the capital stock, or material increase in the short-term
debt or long-term debt, of the Company or any of the Subsidiaries, or
any material adverse change, or any development involving or which may
reasonably be expected to involve, a prospective material adverse
change, in the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole.
(p) Except as provided in the Amended and Restated Credit
Agreement, dated as of September 9, 1994, as amended, among the
Company, certain Subsidiaries, the banks signatory thereto and The
Chase Manhattan Bank, N.A., as Agent (the "Credit Agreement"), each of
the Company and the Material Subsidiaries has good and valid title to
all property (real and personal) described in the Prospectus as being
owned by it, free and clear of all liens, claims, security interests
or other encumbrances except such as are described in the Registration
Statement and the Prospectus or in a document filed as an exhibit to
the Registration Statement and except such as would not, singly or in
the aggregate, have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries taken as a whole, and
all the property described in the Prospectus as being held under lease
by each of the Company and the Subsidiaries is held by it under valid,
subsisting and enforceable leases, except where the failure of any
such lease or leases to be valid, subsisting and enforceable would
not, singly or in the aggregate, have a material adverse effect on the
condition (financial or other), business, properties, net worth or
results of operations of the Company and the Subsidiaries taken as a
whole.
7
8
(q) The Company has not distributed and, prior to the
later to occur of (i) the Closing Date and (ii) completion of the
distribution of the Notes, will not distribute any offering material
in connection with the offering and sale of the Notes other than the
Registration Statement, the Prepricing Prospectus, the Prospectus or
other materials, if any, permitted by the Act.
(r) The Company and each of the Material Subsidiaries has
such permits, qualifications, licenses, franchises and authorizations
of governmental or regulatory authorities ("Permits") as are necessary
to own its respective properties and to conduct its respective
business in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus and except where
the failure to have any such Permit or Permits would not, singly or in
the aggregate, have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries taken as a whole; all
of such Permits are in full force and effect, no proceeding for the
suspension, censure, limitation or termination of any such Permits has
been initiated or threatened, the Company and each of the Material
Subsidiaries has fulfilled and performed all its material obligations
with respect to such Permits, and no event has occurred which allows,
or after notice or lapse of time would allow, revocation or
termination thereof or results, or would result, in any other material
impairment of the rights of the holder of any such Permit, subject in
each case to such qualification as may be set forth in the Prospectus;
and, except as described in the Prospectus, none of such Permits
contains any restriction that is materially burdensome to the Company
or any of the Subsidiaries.
(s) The property, assets and operations of the Company
and the Subsidiaries comply in all material respects with all
applicable federal, state or local laws (including foreign laws),
rules, orders, decrees, judgments, injunctions, licenses, permits or
regulations relating to environmental matters (the "Environmental
Laws"). None of the property, assets or operations of the Company or
the Subsidiaries is the subject of any federal, state or local
investigation evaluating whether any remedial action is needed to
respond to a release of any substance regulated by or form the basis
of liability under any Environmental Laws (a "Hazardous Material")
into the environment or is in contravention of any federal, state,
local or foreign law, order or regulation. Neither the Company nor
any Subsidiary has received any notice or claim, nor to the Company's
knowledge are there any pending or threatened lawsuits against the
Company or any Subsidiary with respect to violations of an
Environmental Law or in connection with the release of any Hazardous
Material into the environment. To the Company's knowledge, neither
the Company nor any Subsidiary has any material contingent liability
in connection with any release of Hazardous Material into the
environment.
(t) The Company and the Subsidiaries maintain insurance
of the types and in amounts generally deemed adequate for their
businesses, all of which insurance is in full force and effect.
(u) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(v) Neither the Company nor any of its Subsidiaries nor,
to the best of the Company's knowledge, any employee or agent of the
Company or any Subsidiary has made any payment of funds of the Company
or any Subsidiary or received or retained any funds in violation of
any law, rule or regulation, which payment, receipt or retention of
funds is of a character required to be disclosed in the Prospectus.
(w) The Company and each of the Subsidiaries have filed
all tax returns required to be filed, except where the failure to have
filed any such return or returns would not, singly or in the
aggregate, have a material adverse effect on the condition (financial
or other), business, properties, net worth or results of operations of
the Company and the Subsidiaries taken as a whole; the returns so
filed are complete and correct in all material
8
9
respects; and neither the Company nor any Subsidiary is in default in
the payment of any taxes which were payable pursuant to said returns
or any assessments with respect thereto, except where any such default
or defaults would not, singly or in the aggregate, have a material
adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole.
(x) No holder of any security of the Company or any other
person has the right, contractual or otherwise, to cause the Company
to sell or otherwise issue to him, or to permit him to underwrite the
sale of, the Notes or the right to have any securities of the Company
included in the registration statement or the right, as a result of
the filing of the registration statement or consummation of the
transactions contemplated by this Agreement, to require registration
under the Act of any securities of the Company.
(y) The Company and the Subsidiaries own or possess
licenses or rights to use all patents, trademarks, trademark
registrations, service marks, service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets and rights described
in the Prospectus as being owned or used by any of them and necessary
for the conduct of their respective businesses, and the Company is not
aware of any claim to the contrary or any challenge by any other
person to the rights of the Company and the Subsidiaries with respect
to the foregoing.
(z) Neither the Company nor any of the Subsidiaries is
and, upon sale of the Notes to be issued and sold thereby in
accordance herewith and the application of the net proceeds by the
Company of such sale as described in the Prospectus under the caption
"Use of Proceeds," neither the Company nor any of the Subsidiaries
will be an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(aa) The Company is in compliance with all provisions of
Florida Statutes Section 517.075 and the regulations thereunder,
relating to issuers doing business with Cuba.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, and the agents, employees, officers and directors of
each Underwriter and each such controlling person, from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs
of investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus or
in the Registration Statement or the Prospectus or in any amendment or
supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission which
has been made therein or omitted therefrom in reliance upon and in conformity
with the information relating to such Underwriter furnished in writing to the
Company by or on behalf of such Underwriter expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph with respect to any Prepricing Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter or any agent, employee, officer or director of such Underwriter or
such controlling person) on account of any such loss, claim, damage, liability
or expense arising from the sale of the Notes by such Underwriter to any person
if a copy of the Prospectus shall not have been delivered or sent to such
person within the time required by the Act and the regulations thereunder, and
the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such Prepricing Prospectus was
corrected in the Prospectus, provided that the Company has delivered the
Prospectus to the several Underwriters in requisite quantity on a timely basis
to permit such delivery or sending. The foregoing indemnity agreement shall be
in addition to any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
person entitled to indemnification pursuant to the preceding paragraph in
respect of which indemnity may be sought against the Company pursuant to the
provisions of the preceding paragraph, such indemnified party shall promptly
notify the Company in writing and the Company shall assume the defense thereof,
including the employment of counsel and payment of all reasonable fees
9
10
and expenses. Such indemnified party shall have the right to employ separate
counsel in any such action, suit or proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the Company has agreed in writing
to pay such fees and expenses, (ii) the Company has failed to assume the
defense and employ counsel, or (iii) the named parties to any such action, suit
or proceeding (including any impleaded parties) include both such indemnified
party and the Company and such indemnified party shall have been advised by its
counsel that representation of such indemnified party and the Company by the
same counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them (in which
case the Company shall not have the right to assume the defense of such action,
suit or proceeding on behalf of such Underwriter or such indemnified party).
It is understood, however, that the Company shall, in connection with any one
such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable
fees and expenses of only one separate firm of attorneys (in addition to any
local counsel) at any time for all such Indemnified Parties not having actual
or potential differing interests with you or among themselves, which firm shall
be designated in writing by Xxxxx Xxxxxx Inc., and that all such reasonable
fees and expenses shall be reimbursed as they are incurred. The Company shall
not be liable for any settlement (or for indemnification of the Indemnified
Parties who are parties to such settlement in respect of the subject matter of
such settlement) of any such action, suit or proceeding effected without its
written consent, which consent shall not be unreasonably withheld, but if
settled with such written consent, or if there be a final judgment for the
plaintiff in any such action, suit or proceeding, the Company agrees to
indemnify and hold harmless, to the extent provided in the preceding paragraph,
any indemnified party from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
agents and employees of the Company and each such controlling person, to the
same extent as the foregoing indemnity from the Company to each Underwriter,
but only with respect to information relating to such Underwriter furnished in
writing by or on behalf of such Underwriter expressly for use in the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against the Company, any of its directors, any such officer, or any
such controlling person, or any agent or employee of the Company or any such
controlling person, based on the Registration Statement, the Prospectus or any
Prepricing Prospectus, or any amendment or supplement thereto, and in respect
of which indemnity may be sought against any Underwriter pursuant to this
paragraph (c), such Underwriter shall have the rights and duties given to the
Company by paragraph (b) above (except that if the Company shall have assumed
the defense thereof such Underwriter shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof, but the
fees and expenses of such counsel shall be at such Underwriter's expense), and
the Company, any of its directors, any such officer, and any such controlling
person, and any agents and employees of the Company and each such controlling
person shall have the rights and duties given to the Underwriters by paragraph
(b) above. The foregoing indemnity agreement shall be in addition to any
liability which the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other hand from the
offering of the Notes, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions
10
11
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company on the one
hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or by the
Underwriters on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined
by a pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price of the Notes underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to
this Section 7 are several in proportion to the respective principal amounts of
Notes set forth opposite their names in Schedule I hereto (or such principal
amounts of Notes increased as set forth in Section 10 hereof) and not joint.
(f) 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 or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any indemnified party, (ii) acceptance of
any Notes and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any indemnified party shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 7.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the firm Notes hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the registration statement or a
post-effective amendment thereto or an Additional Registration
Statement to be declared effective before the offering of the Notes
may commence, the registration statement or such post-effective
amendment or Additional Registration Statement shall have become
effective not later than 5:30 P.M., New York City time, on the date
hereof, or at such later date and time as shall be consented to in
writing by you, and all filings, if any, required by Rules 424 and
430A under the Act shall have been timely made; no stop order
suspending the effectiveness of the registration statement shall have
been issued and no proceeding for that purpose shall have been
instituted or, to the knowledge of the Company or any Underwriter,
threatened by the Commission, and any request of the Commission for
additional information (to be included in the registration statement
or the prospectus or otherwise) shall have been complied with to your
satisfaction.
11
12
(b) Subsequent to the effective date of this Agreement,
there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting the condition
(financial or other), business, properties, net worth, or results of
operations of the Company or the Subsidiaries not contemplated by the
Prospectus, which in your reasonable opinion would materially
adversely affect the market for the Notes, or (ii) any event or
development relating to or involving the Company or any officer or
director of the Company which makes any material statement made in the
Prospectus untrue or which, in the opinion of the Company and its
counsel or you and your counsel, requires the making of any addition
to or change in the Prospectus in order to state a material fact
required by the Act or any other law to be stated therein or necessary
in order to make the statements therein not misleading, if amending or
supplementing the Prospectus to reflect such event or development
would, in your reasonable opinion, materially adversely affect the
market for the Notes.
(c) You shall have received on the Closing Date, an
opinion of Xxxxxx Xxxxxx Butowsky Xxxxxxx Xxxxxx & Xxxx, special
counsel for the Company, dated the Closing Date and addressed to you,
to the effect that:
(i) No consent, approval, authorization
or other order of, or registration or filing with, any court,
regulatory body, administrative agency or other governmental
body, agency, or official is required on the part of the
Company (except as have been obtained under the Act, the 1939
Act, and such as may be required under state securities or
Blue Sky laws governing the purchase and distribution of the
Notes) for the valid issuance and sale of the Notes to the
Underwriters as contemplated by this Agreement;
(ii) The Company has corporate power and
authority to enter into this Agreement and to issue, sell and
deliver the Notes to the Underwriters as provided herein, and
this Agreement has been duly authorized, executed and
delivered by the Company and is a valid, legal and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforcement of rights to
indemnity and contribution hereunder may be limited by federal
or state securities laws or principles of public policy and
subject to the qualification that the enforceability of the
Company's obligations hereunder may be limited by bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium,
and other laws relating to or affecting creditors' rights
generally and by general equitable principles;
(iii) The Indenture has been duly and validly
authorized, executed and delivered by the Company and,
assuming due execution and delivery by the Trustee, is a valid
and binding agreement of the Company, enforceable in
accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or
affecting creditors' rights generally and by general equitable
principles, and has been duly qualified under the 1939 Act and
conforms in all material respects to the description thereof
in the Registration Statement and the Prospectus;
(iv) The Notes have been duly and validly
authorized and executed by the Company and, assuming due
authentication of the Notes by the Trustee in accordance with
the Indenture, upon delivery to the Underwriters against
payment therefor in accordance with the terms hereof, will
have been validly issued and delivered, and will constitute
valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium, and other laws relating to or affecting creditors'
rights generally and by general equitable principles, and the
Notes conform in all material respects to the description
thereof in the Registration Statement and the Prospectus;
(v) The authorized and outstanding capital
stock of the Company is as set forth under the caption
"Capitalization" in the Prospectus; and the authorized capital
stock of the Company conforms in all material respects as to
legal matters to the description thereof contained in the
Prospectus;
(vi) The Registration Statement and all
post-effective amendments, if any, have become effective under
the Act and, to the best knowledge of such counsel after
reasonable inquiry, no stop order
12
13
suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose
are pending before or contemplated by the Commission; and any
required filing of the Prospectus pursuant to Rule 424(b) has
been made in accordance with Rule 424(b); and
(vii) The Registration Statement and the Prospectus
and any supplements or amendments thereto (except for the
financial statements and the notes thereto and the schedules
and other financial and statistical data included therein, as
to which such counsel need not express any opinion) comply as
to form in all material respects with the requirements of the
Act.
In addition to the foregoing opinions, such counsel shall also
state that although they have not undertaken, except as otherwise
indicated in their opinion, to determine independently, and do not
assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the
Prospectus, such counsel have participated in the preparation of the
Registration Statement and the Prospectus, including review and
discussion of the contents thereof (including review and discussion of
the contents of all Incorporated Documents), and nothing has come to
the attention of such counsel that has caused them to believe that the
Registration Statement (including the Incorporated Documents), at the
time the Registration Statement became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of its date and as
of the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or that any
amendment or supplement to the Prospectus, as of its respective date
and as of the Closing Date, included or includes an untrue statement
of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to
the financial statements and the notes thereto and the schedules and
other financial and statistical data included in the Registration
Statement or the Prospectus or any Incorporated Document).
(d) You shall have received on the Closing Date, an
opinion of Xxxxxxx X. Xxxxxxxxxx, General Counsel of the Company,
dated the Closing Date and addressed to you, to the effect that:
(i) The Company is a corporation validly
existing in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus
(and any amendment or supplement thereto), and is duly
registered and qualified to conduct its business and is in
good standing in each jurisdiction or place where the nature
of its properties or the conduct of its business requires such
registration or qualification, except where any failure or
failures so to register or qualify, singly or in the
aggregate, would not have a material adverse effect on the
condition (financial or other), business, properties, net
worth or results of operations of the Company and the
Subsidiaries taken as a whole;
(ii) Each of the Material Subsidiaries is
a corporation validly existing in good standing under the
laws of the jurisdiction of its organization, with full
corporate power and authority to own, lease, and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment
or supplement thereto), and is duly registered and qualified
to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or
the conduct of its business requires such registration or
qualification, except where any failure or failures so to
register or qualify, singly or in the aggregate, would not
have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of
operations of the Company and the Subsidiaries taken as a
whole; and all of the outstanding shares of capital stock of
each of the Material Subsidiaries have been duly authorized
and validly issued, are fully paid and nonassessable, and are
owned by the Company directly, or indirectly through one of
the other Material Subsidiaries, free and clear of any
perfected security interest, or, to the best knowledge of such
counsel after reasonable inquiry, any other security interest,
lien, adverse claim, equity or other encumbrance;
13
14
(iii) All the shares of capital stock of
the Company outstanding prior to the issuance of the Notes
have been duly authorized and validly issued, and are fully
paid and nonassessable;
(iv) To the best knowledge of such
counsel after reasonable inquiry, neither the Company nor any
of the Subsidiaries is in violation of its respective
certificate or articles of incorporation or bylaws, or other
organizational documents or in default in the performance of
any material obligation, agreement or condition contained in
any material bond, debenture, note or other evidence of
indebtedness, except as may be disclosed in the Prospectus;
(v) Neither the offer, sale or delivery
of the Notes, the execution, delivery or performance of this
Agreement and the Indenture by the Company, compliance by the
Company with the provisions hereof and thereof, nor
consummation by the Company of the transactions contemplated
hereby and thereby, (A) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default
under, the certificate or articles of incorporation or bylaws,
or other organizational documents, of the Company or any of
the Material Subsidiaries or any material agreement,
indenture, lease or other instrument to which the Company or
any of the Material Subsidiaries is a party or by which any of
them or any of their respective properties is bound, or (B)
will result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or
any of the Subsidiaries, or (C) will result in any violation
of any existing law, regulation, ruling (assuming compliance
with all applicable state securities and Blue Sky laws),
judgment, injunction, order or decree applicable to the
Company or any of the Material Subsidiaries or any of their
respective properties, except where any such violation or
violations, singly or in the aggregate, would not have a
material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of
the Company and the Subsidiaries taken as a whole;
(vi) Each of the Incorporated Documents
(except for the financial statements and the notes thereto and
the schedules and other financial and statistical data
included therein, as to which counsel need not express any
opinion), when filed, complied as to form in all material
respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder;
(vii) The statements in the Registration
Statement and Prospectus, insofar as they are descriptions of
contracts, agreements or other legal documents, or refer to
statements of law or legal conclusions, are accurate in all
material respects and present fairly the information required
to be shown;
(viii) There are no legal or governmental
proceedings pending or, to such counsel's knowledge,
threatened against the Company or any of the Subsidiaries, or
to which the Company or any of the Subsidiaries or any of
their respective properties is subject, that are required to
be described in the Registration Statement or the Prospectus
but are not described as required, and there are no
agreements, contracts, indentures, leases or other instruments
known to such counsel that are required to be described in the
Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement or any Incorporated
Document that are not described or filed as required by the
Act or the Exchange Act;
(ix) To the best knowledge of such
counsel after reasonable inquiry, neither the Company nor any
of the Subsidiaries is in violation of any law, ordinance,
administrative or governmental rule or regulation applicable
to the Company or any of the Subsidiaries or of any decree of
any court or governmental agency or body having jurisdiction
over the Company or any of the Subsidiaries, except where any
such violation or violations, singly or in the aggregate,
would not have a material adverse effect on the condition
(financial or other), business, properties, net worth or
results of operations of the Company and the Subsidiaries
taken as a whole;
(x) The Company and each of the
Subsidiaries has all such Permits as are necessary to own its
respective properties and to conduct its respective businesses
in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus (except
where the failure to so have any such Permits, individually or
in the aggregate, would not have a material adverse effect on
the
14
15
business, properties, operations or financial condition of the
Company and the Subsidiaries taken as a whole); and to the
best knowledge of such counsel after reasonable inquiry, all
of such Permits are in full force and effect, no proceeding
for the suspension, censure, limitation or termination of any
thereof has been initiated or threatened and no event has
occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results, or would
result, in any other material impairment of the rights of the
holder of any such Permit, subject in each case to such
qualification as may be set forth in the Prospectus;
(xi) The Company and the Subsidiaries own
or possess licenses or rights to use all patents, trademarks,
trademark registrations, service marks, service mark
registrations, trade names, copyrights, licenses, inventions,
trade secrets and rights described in the Prospectus as being
owned or used by any of them and necessary for the conduct of
their respective businesses, and such counsel is not aware of
any claim to the contrary or any challenge by any other person
to the rights of the Company and the Subsidiaries with respect
to the foregoing;
(xii) Except for (i) long-term incentive
restricted stock awards to certain executive officers
which are subject to shareholder approval and (ii)
225,000 shares of Class B Common Stock issuable to a
franchisee of the Company in connection with a franchise
repurchase agreement, and other than as described in the
Prospectus, there are no outstanding options, warrants or
other rights calling for the issuance of, and such counsel
does not know of any commitment, plan or arrangement to issue,
any shares of capital stock of the Company or any security
convertible into or exchangeable or exercisable for capital
stock of the Company; and
(xiii) No holder of any security of the
Company or any other person has the right, contractual or
otherwise, to cause the Company to sell or otherwise issue to
him, or to permit him to underwrite the sale of, the Notes or
the right to have any securities of the Company included in
the registration statement or the right, as a result of the
filing of the registration statement, to require registration
under the Act of any securities of the Company.
(e) You shall have received on the Closing Date an
opinion of Xxxxx Xxxxxxxxxx, counsel for the Underwriters, dated the
Closing Date and addressed to you, with respect to the matters
referred to in clauses (ii) through (iv), (vi) and (vii) and the last
paragraph of Section 8(c) hereof and in clause (vi) of Section 8(d)
hereof and such other related matters as you may request.
(f) You shall have received letters addressed to you,
dated the date hereof and the Closing Date, from Xxxxxxx & Xxxxxxx
L.L.P., independent certified public accountants, substantially in the
forms heretofore approved by you.
(g) (i) No stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings
for that purpose shall have been taken or, to the knowledge of the
Company, shall be contemplated by the Commission at or prior to the
Closing Date; (ii) there shall not have been any change in the capital
stock of the Company nor any material increase in the short-term or
long-term debt of the Company (other than in the ordinary course of
business) from that set forth or contemplated in the Registration
Statement or the Prospectus (or any amendment or Supplement thereto);
(iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), except as may
otherwise be stated in the Registration Statement and Prospectus (or
any amendment or supplement thereto), any material adverse change in
the condition (financial or other), business, prospects, properties,
net worth or results of operations of the Company and the Subsidiaries
taken as a whole; (iv) the Company and the Subsidiaries shall not have
any liabilities or obligations, direct or contingent (whether or not
in the ordinary course of business), that are material to the Company
and the Subsidiaries, taken as a whole, other than those reflected in
the Registration Statement or the Prospectus (or any amendment or
supplement thereto); and (v) all the representations and warranties of
the Company contained in this Agreement shall be true and correct on
and as of the date hereof and on and as of the Closing Date as if made
on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief executive
officer and the chief financial officer of the Company (or such other
officers as are acceptable to you), to the effect set forth in this
Section 8(g) and in Section 8(h) hereof.
15
16
(h) There shall not have been any announcement by any
"nationally recognized statistical rating organization", as defined
for purposes of Rule 436(g) under the Act, that (i) it is downgrading
its rating assigned to any class of securities of the Company, or (ii)
it is reviewing its rating assigned to any class of securities of the
Company with a view to possible downgrading, or with negative
implications, or direction not determined.
(i) The Company shall not have failed at or prior to the
Closing Date in any material respect to have performed or complied
with any of its agreements herein contained and required to be
performed or complied with by it hereunder at or prior to the Closing
Date.
(j) You shall have received a certificate dated the
Closing Date signed by the chief accounting officer of the Company
substantially in the form heretofore approved by you, respecting the
Company's compliance with the financial covenants contained in the
Credit Agreement and certain other agreements to which the Company is
a party.
(k) The Company shall have furnished or caused to be
furnished to you such further certificates and documents as you shall
have reasonably requested.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in form
and substance to you and your counsel.
Any certificate or document signed by any officer of the Company and
delivered to you or to your counsel shall be deemed a representation and
warranty by the Company to each Underwriter as to the statements made therein.
9. EXPENSES. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing (or reproduction), and
filing with the Commission of the registration statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the Prospectus,
each amendment or supplement to any of them, this Agreement, the Indenture and
the Statement of Eligibility and Qualification of the Trustee; (ii) the
printing (or reproduction) and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the Registration
Statement, each Prepricing Prospectus, the Prospectus, the Incorporated
Documents, and all amendments or supplements to any of them, as may be
reasonably requested for use in connection with the offering and sale of the
Notes; (iii) the preparation, printing, authentication, issuance and delivery
of the Notes, including any stamp taxes in connection with the original
issuance of the Notes; (iv) the printing (or reproduction) and delivery of this
Agreement, the preliminary and supplemental Blue Sky Memoranda and all other
agreements or documents printed (or reproduced) and delivered in connection
with the offering of the Notes; (v) the registration or qualification of the
Notes for offer and sale under the securities or Blue Sky laws of the several
states as provided in Section 5(g) hereof (including the reasonable fees,
expenses and disbursements of counsel for the Underwriters relating to the
preparation, printing (or reproduction), and delivery of the preliminary and
supplemental Blue Sky Memoranda and such registration and qualification); (vi)
the filing fees and the fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the National Association
of Securities Dealers, Inc.; (vii) the transportation and other expenses
incurred by or on behalf of the Company and its representatives in connection
with presentations to prospective purchasers of the Notes; (viii) the fees and
expenses of the Trustee; (ix) the fees and expenses associated with obtaining
ratings for the Notes from nationally recognized statistical rating
organizations; (x) the fees and expenses of the Company's accountants; and (xi)
the fees and expenses of counsel (including local and special counsel) for the
Company. In no event shall the Company be liable to an Underwriter for loss of
anticipated profits from transactions contemplated by this Agreement.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the registration statement or a post-effective amendment thereto or an
Additional Registration Statement to be declared effective before the offering
of the Notes may commence, when notification of the effectiveness of the
registration statement or such post-effective amendment or Additional
Registration Statement has been released by
16
17
the Commission. Until such time as this Agreement shall have become effective,
it may be terminated by the Company, by notifying each of you, or by you, by
notifying the Company.
If any one or more of the Underwriters shall fail or refuse to
purchase Notes which it or they have agreed to purchase hereunder, and the
aggregate principal amount of the Notes which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of Notes, each non-defaulting
Underwriter shall be obligated, severally, in the proportion which the
aggregate principal amount of Notes set forth opposite its name in Schedule I
hereto bears to the aggregate principal amount of Notes set forth opposite the
names of all non-defaulting Underwriters or in such other proportion as you may
specify in accordance with Section 20 of the Master Agreement Among
Underwriters of Xxxxx Xxxxxx, Xxxxxx Xxxxx & Co. Incorporated (predecessor to
Xxxxx Xxxxxx Inc.), to purchase the Notes which such defaulting Underwriter or
Underwriters agreed, but failed or refused, to purchase. If any Underwriter or
Underwriters shall fail or refuse to purchase Notes and the aggregate principal
amount of Notes with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Notes and arrangements
satisfactory to you and the Company for the purchase of such Notes are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any such
default of any such Underwriter under this Agreement.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company by notice to the Company, if prior to the Closing
Date, (i) trading in the Common Stock of the Company shall be suspended or
subject to any restriction or limitation not in effect on the date of this
Agreement; (ii) trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or the Nasdaq National Market shall have been
suspended or materially limited, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either federal or
state authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in your
reasonable judgment, impracticable or inadvisable to commence or continue the
offering of the Notes on the terms set forth on the cover page of the
Prospectus or to enforce contracts for the resale of the Notes by the
Underwriters.
Notice of such termination may be given by telegram, telecopy or
telephone and shall be subsequently confirmed by letter.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set
forth in the last paragraph on the cover page, the stabilization legend on the
inside cover page, and the statements in the first and third paragraphs under
the caption "Underwriting" in any Prepricing Prospectus and in the Prospectus,
constitute the only information furnished by or on behalf of the Underwriters
as such information is referred to in Sections 6(b) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10
and 11 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to Company, at the office of
Company at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
X. Xxxxxxxxxx, Senior Vice President and General Counsel, fax no. (516)
000-0000, or (ii) if to you, in care of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Corporate Finance
Division, fax no. (000) 000-0000.
17
18
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its directors and officers, and the other
controlling persons referred to in Section 7 hereof and their respective
successors and assigns, to the extent provided herein, and no other person
shall acquire or have any right under or by virtue of this Agreement. Neither
the term "successor" nor the term "successors and assigns" as used in this
Agreement shall include a purchaser from any Underwriter of any of the Notes in
his status as such purchaser.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
18
19
Please confirm that the foregoing correctly sets forth the agreement
between the Company and each of you.
Very truly yours,
OLSTEN CORPORATION
By ........................................
Chairman and Chief Executive Officer
Confirmed as of the date first
above mentioned.
XXXXX XXXXXX INC.
XXXXX SECURITIES, INC.
PRUDENTIAL SECURITIES INCORPORATED
By XXXXX XXXXXX INC.
By ...........................................
Managing Director
19
20
SCHEDULE I
OLSTEN CORPORATION
Principal Amount
Underwriter of Notes
----------- ----------------
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . . . . $
Chase Securities, Inc.
Prudential Securities Incorporated . . . . . . . . . . . . . . . .
------------
Total . . . . . . . . . . . . . . . . . . . . . . . . $200,000,000
============
20
