[4,071,117] Shares
AQUAPENN SPRING WATER COMPANY, INC.
Common Stock
UNDERWRITING AGREEMENT
[ ], 1998
PAINEWEBBER INCORPORATED
LAZARD FRERES & CO. LLC
XXXXXX/XXXXXX INCORPORATED
As Representatives of the
several Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
AquaPenn Spring Water Company, Inc., a Pennsylvania corporation (the
"Company"), and the shareholders of the Company named in Schedule I (the
"Selling Shareholders"), severally propose to sell an aggregate of 4,071,117
shares (the "Firm Shares") of the Company's Common Stock, no par value (the
"Common Stock"), of which [2,000,000] shares are to be issued and sold by the
Company and an aggregate of [2,071,117] shares are to be sold by the Selling
Shareholders in the respective amounts set forth opposite their respective names
in Schedule I, in each case to you and to the other underwriters named in
Schedule II (collectively, the "Underwriters"), for whom you are acting as
representatives (the "Representatives"). The Company has also agreed to grant to
you and the other Underwriters an option (the "Option") to purchase up to an
additional 610,668 shares of Common Stock (the "Option Shares") on the terms and
for the purposes set forth in Section 1(b). The Firm Shares and the Option
Shares are hereinafter collectively referred to as the "Shares."
The initial public offering price per share for the Shares and the purchase
price per share for the Shares to be paid by the several Underwriters shall be
agreed upon by the Company, the Selling Shareholders and the Representatives,
acting on behalf of the several Underwriters, and such agreement shall be set
forth in a separate written instrument substantially in the form of Exhibit A
hereto (the "Price Determination Agreement"). The Price Determination Agreement
may take the form of an exchange of any standard form of written
telecommunication among the Company, the Selling Shareholders and the
Representatives and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the Shares will be governed by this Agreement,
as supplemented by the Price Determination Agreement. From and after the date of
the execution and delivery of the Price Determination Agreement, this Agreement
shall be deemed to incorporate, and, unless the context otherwise indicates, all
references contained herein to "this Agreement" and to the phrase "herein" shall
be deemed to include the Price Determination Agreement.
Each Selling Shareholder has executed and delivered a Custody Agreement and
a Power of Attorney in the form attached hereto as Exhibit B (collectively, the
"Agreement and Power of Attorney") pursuant to which each Selling Shareholder
has placed his, her or its Firm Shares in custody and appointed the persons
designated therein as attorneys-in-fact (the "Attorneys-in-Fact") with authority
to execute and deliver this Agreement on behalf of such Selling Shareholder and
to take certain other actions with respect thereto and hereto.
The Company and the Selling Shareholders confirm as follows their
respective agreements with the Representatives and the several other
Underwriters.
1. Agreement to Sell and Purchase. (a) On the basis of the representations,
warranties and agreements of the Company and the Selling Shareholders herein
contained and subject to all the terms and conditions of this Agreement, (i) the
Company agrees to sell 2,000,000 Firm Shares and (ii) the Selling Shareholders
agree, severally and not jointly, to sell the number of Firm Shares set forth
opposite each such Selling Shareholder's name on Schedule I hereto, to each
Underwriter named in Schedule II, and each Underwriter, severally and not
jointly, agrees to purchase from the Company and the Selling Shareholders at the
purchase price per share for the Firm Shares to be agreed upon by the
Representatives, the Company and the Selling Shareholders in accordance with
Section 1(c) or 1(d) hereof and set forth in the Price Determination Agreement,
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule II, plus such additional number of Firm Shares which such Underwriter
may become obligated to purchase pursuant to Section 8 hereof. Schedule II may
be attached to the Price Determination Agreement.
(b) Subject to all the terms and conditions of this Agreement, the Company
grants the Option to the several Underwriters to purchase, severally and not
jointly, up to 610,668 Option Shares from the Company at the same price per
share as the Underwriters shall pay for the Firm Shares. The Option may be
exercised only to cover over-allotments in the sale of the Firm Shares by the
Underwriters and may be exercised in whole or in part at any time (but not more
than once) on or before the 30th day after the date of this Agreement (or, if
the Company has elected to rely on Rule 430A, on or before the 30th day after
the date of the Price Determination Agreement), upon written or telegraphic
notice (the "Option Shares Notice") by the Representatives to the Company no
later than 12:00 noon, New York City time, at least two and no more than five
business days before the date specified for closing in the Option Shares Notice
(the "Option Closing Date") setting forth the aggregate number of Option Shares
to be purchased and the time and date for such purchase. On the Option Closing
Date, the Company will issue and sell to the Underwriters the number of Option
Shares set forth in the Option Shares Notice, and each Underwriter will purchase
such percentage of the Option Shares as is equal to the percentage of Firm
Shares that such Underwriter is purchasing, as adjusted by the Representatives
in such manner as they deem advisable to avoid fractional shares.
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(c) The initial public offering price per share for the Firm Shares and the
purchase price per share for the Firm Shares to be paid by the several
Underwriters shall be agreed upon and set forth in the Price Determination
Agreement, if the Company has elected to rely on Rule 430A. In the event such
price has not been agreed upon and the Price Determination Agreement has not
been executed by the close of business on the fourteenth business day following
the date on which the Registration Statement (as hereinafter defined) becomes
effective, this Agreement shall terminate forthwith, without liability of any
party to any other party except that Section 6 shall remain in effect.
(d) If the Company has elected not to rely on Rule 430A, the initial public
offering price per share for the Firm Shares and the purchase price per share
for the Firm Shares to be paid by the several Underwriters shall be agreed upon
and set forth in the Price Determination Agreement, which shall be dated the
date hereof, and an amendment to the Registration Statement containing such per
share price information shall be filed before the Registration Statement becomes
effective.
2. Delivery and Payment. Delivery of the Firm Shares shall be made to the
Representatives for the accounts of the Underwriters at the office of
PaineWebber Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
against payment of the purchase price by Federal Reserve Funds checks payable in
immediately available funds to the order of the Company and the
Attorneys-in-Fact. Such payment shall be made at 10:00 a.m., New York City time,
on the third business day (or fourth business day, if the Price Determination
Agreement is executed after 4:30 p.m.) after the date on which the first bona
fide offering of the Shares to the public is made by the Underwriters or at such
time on such other date, not later than ten business days after such date, as
may be agreed upon by the Company and the Representatives (such date is
hereinafter referred to as the "Closing Date").
To the extent the Option is exercised, delivery of the Option Shares
against payment by the Underwriters (in the manner specified above) will take
place at the offices specified above for the Closing Date at the time and date
(which may be the Closing Date) specified in the Option Shares Notice.
Certificates evidencing the Shares shall be in definitive form or, with the
consent of the Representatives, in temporary form, and shall be registered in
such names and in such denominations as the Representatives shall request at
least two business days prior to the Closing Date or the Option Closing Date, as
the case may be, by written notice to the Company. For the purpose of expediting
the checking and packaging of certificates for the Shares, the Company agrees to
make such certificates available for inspection at least 24 hours prior to the
Closing Date or the Option Closing Date, as the case may be.
The cost of original issue tax stamps and transfer taxes, if any, in
connection with the issuance and delivery of the Firm Shares and Option Shares
by the Company to the respective Underwriters shall be borne by the Company. The
cost of tax stamps and transfer taxes, if any, in connection with the sale of
the Firm Shares by the Selling Shareholders shall be borne by the Selling
Shareholders. The Company and the Selling Shareholders will pay and save each
Underwriter and any subsequent holder of the Shares harmless from any and all
liabilities with respect to or resulting from any failure or delay in paying
Federal and state stamp and other transfer taxes, if any, which
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may be payable or determined to be payable in connection with the original
issuance or sale to such Underwriter of the Firm Shares and Option Shares.
3. Representations and Warranties of the Company. The Company represents,
warrants and covenants to each Underwriter that:
(a) A registration statement (Registration No. 333-38771) on Form S-1
relating to the Shares, including a preliminary prospectus and such
amendments to such registration statement as may have been required to the
date of this Agreement, has been prepared by the Company under the
provisions of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations (collectively referred to as the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder, and has been filed with the Commission. The term "preliminary
prospectus" as used herein means a preliminary prospectus as contemplated
by Rule 430 or Rule 430A ("Rule 430A") of the Rules and Regulations
included at any time as part of the registration statement. Copies of such
registration statement and amendments and of each related preliminary
prospectus have been delivered to the Representatives. The term
"Registration Statement" means the registration statement as amended at the
time it becomes or became effective (the "Effective Date"), including
financial statements and all exhibits and any information deemed to be
included by Rule 430A or Rule 434 of the Rules and Regulations. If the
Company files a registration statement to register a portion of the Shares
and relies on Rule 462(b) of the Rules and Regulations for such
registration statement to become effective upon filing with the Commission
(the "Rule 462 Registration Statement"), then any reference to the
"Registration Statement" shall be deemed to include the Rule 462
Registration Statement, as amended from time to time. The term "Prospectus"
means the prospectus as first filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations or, if no such filing is required, the
form of final prospectus included in the Registration Statement at the
Effective Date.
(b) On the Effective Date, the date the Prospectus is first filed with
the Commission pursuant to Rule 424(b) (if required), at all times
subsequent thereto up to and including the Closing Date and, if later,
the Option Closing Date and when any post-effective amendment to the
Registration Statement becomes effective or any amendment or supplement to
the Prospectus is filed with the Commission, the Registration Statement and
the Prospectus (as amended or as supplemented if the Company shall have
filed with the Commission any amendment or supplement thereto), including
the financial statements included in the Prospectus, did or will comply in
all material respects with all applicable provisions of the Act and the
Rules and Regulations and will contain all statements required to be stated
therein in order to comply in all material respects with the Act and the
Rules and Regulations. On the Effective Date and when any post-effective
amendment to the Registration Statement becomes effective, no part of the
Registration Statement or any such amendment did or will contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading. At the Effective Date, the date the Prospectus or any amendment
or supplement to the Prospectus is filed with the Commission and at the
Closing Date and, if later, the Option Closing Date, the Prospectus did not
or will not contain any untrue
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statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading. The foregoing representations and
warranties in this Section 3(b) do not apply to any statements or omissions
made in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company by the Representatives
specifically for inclusion in the Registration Statement or Prospectus or
any amendment or supplement thereto. For all purposes of this Agreement,
the information set forth under the first, third, seventh (excluding the
first sentence thereof), eighth and ninth paragraphs under the section
"Underwriting" in the Prospectus, were furnished in writing to the Company
by the Representatives specifically for inclusion in the Registration
Statement, the preliminary prospectus or the Prospectus. The Company has
not distributed any offering material in connection with the offering or
sale of the Shares other than the Registration Statement, the preliminary
prospectus, the Prospectus or any other materials, if any, permitted by the
Act.
(c) The only subsidiaries (as defined in the Rules and Regulations) of
the Company are the subsidiaries listed on Exhibit 21 to the Registration
Statement (the "Subsidiaries"). The Company and each of its Subsidiaries
is, and at the Closing Date will be, a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation. The Company and each of its Subsidiaries has, and at the
Closing Date will have, full power and authority to conduct all the
activities conducted by it, to own or lease all the assets owned or leased
by it and to conduct its business as described in the Registration
Statement and the Prospectus. The Company and each of its Subsidiaries is,
and at the Closing Date will be, duly licensed or qualified to do business
and in good standing as a foreign corporation in all jurisdictions in which
the nature of the activities conducted by it or the character of the assets
owned or leased by it makes such licensing or qualification necessary,
except where the failure to be so qualified would not have a material
adverse effect on the Company and its Subsidiaries, taken as a whole. All
of the outstanding shares of capital stock of the Subsidiaries have been
duly authorized and validly issued and are fully paid and nonassessable and
are owned by the Company free and clear of all liens, encumbrances and
claims whatsoever. Except for the stock of the Subsidiaries and as
disclosed in the Registration Statement, the Company does not own, and at
the Closing Date will not own, directly or indirectly, any shares of stock
or any other equity or long-term debt securities of any corporation or have
any equity interest in any firm, partnership, joint venture, association or
other entity. Complete and correct copies of the certificate of
incorporation and of the by-laws of the Company and each of its
Subsidiaries and all amendments thereto have been delivered to the
Representatives.
(d) The outstanding shares of Common Stock have been, and the Shares
to be issued and sold by the Company upon such issuance will be, duly
authorized, validly issued, fully paid and nonassessable and will not be
subject to any preemptive or similar right. The description of the Common
Stock in the Registration Statement and the Prospectus is, and at the
Closing Date will be, complete and accurate in all material respects.
Except as set forth in the Prospectus, the Company does not have
outstanding, and at the Closing Date will not have outstanding, any options
to purchase, or any rights or warrants to
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subscribe for, or any securities or obligations convertible into, or any
contracts or commitments to issue or sell, any shares of Common Stock, any
shares of capital stock of any Subsidiary or any such warrants, convertible
securities or obligations.
(e) The financial statements and schedules included in the
Registration Statement or the Prospectus present fairly the consolidated
financial condition of the Company as of the respective dates thereof and
the consolidated results of operations and cash flows of the Company for
the respective periods covered thereby, all in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
entire period involved, except as otherwise disclosed in the Prospectus.
The pro forma financial statements and other pro forma financial
information included in the Registration Statement or the Prospectus
(i) present fairly in all material respects the information shown therein,
(ii) have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and (iii) have
been properly computed on the bases described therein. The assumptions used
in the preparation of the pro forma financial statements and other pro
forma financial information included in the Registration Statement or the
Prospectus are reasonable and the adjustments used therein are appropriate
to give effect to the transactions or circumstances referred to therein. No
other financial statements or schedules of the Company are required by the
Act or the Rules and Regulations to be included in the Registration
Statement or the Prospectus. KPMG Peat Marwick LLP (the "Accountants"), who
have reported on such financial statements and schedules, are independent
accountants with respect to the Company as required by the Act and the
Rules and Regulations. The statements included in the Registration
Statement with respect to the Accountants pursuant to Item 509 of
Regulation S-K of the Rules and Regulations are true and correct in all
material respects.
(f) The Company maintains a system of internal accountings control
sufficient to provide reasonable assurance 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; and (iii) access to
assets is permitted only in accordance with management's general or
specific authorization.
(g) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the
Closing Date, except as set forth in or contemplated by the Registration
Statement and the Prospectus, (i) there has not been and will not have been
any change in the capitalization of the Company, or in the business,
properties, business prospects, condition (financial or otherwise) or
results of operations of the Company and its Subsidiaries, arising for any
reason whatsoever, (ii) neither the Company nor any of its Subsidiaries has
incurred nor will it incur any material liabilities or obligations, direct
or contingent, nor has it entered into nor will it enter into any material
transactions other than pursuant to this Agreement and the transactions
referred to herein and (iii) the Company has not and will not have paid or
declared any dividends or other distributions of any kind on any class
of its capital stock.
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(h) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," within the meaning of the Investment Company Act of 1940, as
amended.
(i) Except as set forth in the Registration Statement and the
Prospectus, there are no legal or governmental actions, suits or
proceedings pending or, to the best of the Company's knowledge, threatened
against the Company or any of its Subsidiaries or any of their respective
officers in their capacity as such, before or by any Federal or state
court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, wherein an unfavorable ruling,
decision or finding might materially and adversely affect the Company or
any of its Subsidiaries or its business, properties, business prospects,
condition (financial or otherwise) or results of operations.
(j) Each of the Company and its Subsidiaries has, and at the Closing
Date will have, (i) all material governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to carry on its
business as contemplated in the Prospectus, (ii) complied in all material
respects with all laws, regulations and orders applicable to it or its
business and (iii) performed in all material respects the obligations
required to be performed by it, and is not, and at the Closing Date will
not be, in default, under any indenture, mortgage, deed of trust, voting
trust agreement, loan agreement, bond, debenture, note agreement, lease,
contract or other agreement or instrument (collectively, a "contract or
other agreement") to which it is a party or by which its property is bound
or affected. To the best knowledge of the Company and each of its
Subsidiaries, no other party under any contract or other agreement to which
it is a party is in default in any material respect thereunder. Neither the
Company nor any of its Subsidiaries is, nor at the Closing Date will any of
them be, in violation of any provision of its certificate of incorporation
or by-laws.
(k) No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of
the Shares by the Company, in connection with the execution, delivery and
performance of this Agreement by the Company or in connection with the
taking by the Company of any action contemplated hereby, except such as
have been obtained under the Act or the Rules and Regulations and such as
may be required (i) under state securities or Blue Sky laws or the by-laws
and rules of the National Association of Securities Dealers, Inc. (the
"NASD") in connection with the purchase and distribution by the
Underwriters of the Shares and (ii) in connection with the purchase and
distribution of Shares outside of the United States.
(l) The Company has full corporate power and authority to enter into
this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of
the Company and is enforceable against the Company in accordance with the
terms hereof. The performance of this Agreement and the consummation of the
transactions contemplated hereby and the application of the net proceeds
from the offering and sale of the Shares in the manner set forth in the
Prospectus under "Use of
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Proceeds" will not result in the creation or imposition of any lien, charge
or encumbrance upon any of the assets of the Company or any of its
Subsidiaries pursuant to the terms or provisions of, or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, or give any other party a right to terminate any of its obligations
under, or result in the acceleration of any obligation under, the
certificate of incorporation or by-laws of the Company or any of its
Subsidiaries, any contract or other agreement to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries or any of its properties is bound, or violate or conflict with
any judgment, ruling, decree, order, statute, rule or regulation of any
court or other governmental agency or body applicable to the business or
properties of the Company or any of its Subsidiaries.
(m) Each of the Company and its Subsidiaries has good and marketable
title to all properties and assets described in the Prospectus as owned by
it, free and clear of all liens, charges, encumbrances or restrictions,
except such as are described in the Prospectus or are not material to the
business of the Company or its Subsidiaries. Each of the Company and its
Subsidiaries has valid, subsisting and enforceable leases for the
properties described in the Prospectus as leased by it, with such
exceptions as are not material and do not materially interfere with the use
made and proposed to be made of such properties by the Company and such
Subsidiaries.
(n) There is no document or contract of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or filed as
required. All such contracts to which the Company or any Subsidiary is a
party have been duly authorized, executed and delivered by the Company or
such Subsidiary, constitute valid and binding agreements of the Company or
such Subsidiary and are enforceable against the Company or such Subsidiary
in accordance with the terms thereof.
(o) No statement, representation, warranty or covenant made by the
Company in this Agreement or made by the Company in any certificate or
document required by this Agreement to be delivered to the Representatives
was or will be, when made, inaccurate, untrue or incorrect.
(p) Neither the Company nor any of its directors, officers or
controlling persons has taken, directly or indirectly, any action intended,
or which might reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Shares.
(q) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the
Registration Statement.
(r) The Company and its Subsidiaries are in material compliance with
all federal, state and local employment and labor laws, including, but not
limited to, laws relating to non-discrimination in hiring, promotion and
pay of employees; no labor dispute with the employees of the Company or any
Subsidiary exists or, to
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the knowledge of the Company, is imminent or threatened; and to the best
knowledge of the Company there is no existing, imminent or threatened labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could result in a material adverse effect
on the condition (financial or otherwise) or on the earnings, business,
properties, business prospects or operations of the Company and its
Subsidiaries, taken as a whole.
(s) The Company and its Subsidiaries own, or are licensed or otherwise
have the full exclusive right to use, the material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade
names (collectively, "patent and proprietary rights") presently employed by
them or which are necessary in connection with the conduct of the business
now operated by them, and neither the Company nor any of its Subsidiaries
has received any written notice or otherwise has actual knowledge of any
infringement of or conflict with asserted rights of others or any other
claims with respect to any patent or proprietary rights which could have a
material adverse effect on the condition (financial or otherwise) or on the
earnings, business, properties, business prospects or operations of the
Company and its Subsidiaries, taken as whole or of any basis for rendering
any patent and proprietary rights invalid or inadequate to protect the
interest of the Company or any of its Subsidiaries.
(t) The Company has complied, and until the completion of the
distribution of the Shares will comply, with all of the provisions of
(including, without limitation, filing all forms required by) Section
517.075 of the Florida Securities and Investor Protection Act and
Regulation 3E-900.001 issued thereunder with respect to the offering and
sale of the Shares.
(u) The Company and its Subsidiaries (i) are in compliance with all
applicable federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or imposing
liability or standards of conduct concerning any Hazardous Material (as
hereinafter defined) ("Environmental Laws"), (ii) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
would not, individually or in the aggregate result in a material adverse
effect on the condition (financial or otherwise) or on the earnings,
business, properties, business prospects or operations of the Company and
its Subsidiaries, taken as a whole. The term "Hazardous Material" means
(A)any "hazardous substance" as defined by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, (B)any
"hazardous waste" as defined by the Resource Conservation and Recovery Act,
as amended, (C) any petroleum or petroleum product, (D any polychlorinated
biphenyl and (E) any pollutant or contaminant or hazardous, dangerous, or
toxic chemical, material, waste or substance regulated under or within the
meaning of any other Environmental Law.
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(v) [In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its Subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties).] Except as set forth in the Registration Statement and the
Prospectus, there are no costs and liabilities associated with or arising
in connection with Environmental Laws as currently in effect (including,
without limitation, costs of compliance therewith) which would, singly or
in the aggregate, have a material adverse effect on the condition
(financial or otherwise) or on the earnings, business, properties, business
prospects or operations of the Company and its Subsidiaries, taken as a
whole.
(w) The Company maintains insurance with respect to its properties and
business of the types and in amounts generally deemed adequate for its
business and consistent with insurance coverage maintained by similar
companies and businesses, all of which insurance is in full force and
effect.
(x) The Company has filed all material federal, state and foreign
income and franchise tax returns and has paid all taxes shown as due
thereon, other than taxes which are being contested in good faith and for
which adequate reserves have been established in accordance with generally
accepted accounting principles ("GAAP"); and the Company has no knowledge
of any tax deficiency which has been or might be asserted or threatened
against the Company. There are no tax returns of the Company or any of its
Subsidiaries that are currently being audited by state, local or federal
taxing authorities or agencies (and with respect to which the Company or
any Subsidiary has received notice), where the findings of such audit, if
adversely determined, would result in a material adverse effect on the
condition (financial or otherwise) or on the earnings, business,
properties, business prospects or operations of the Company and its
Subsidiaries, taken as a whole.
(y) With respect to each employee benefit plan, program and
arrangement (including, without limitation, any "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) maintained or contributed to by the Company, or
with respect to which the Company could incur any liability under ERISA
(collectively, the "Benefit Plans"), no event has occurred and, to the best
knowledge of the Company, there exists no condition or set of
circumstances, in connection with which the Company could be subject to any
liability under the terms of such Benefit Plan, applicable law (including,
without limitation, ERISA and the Internal Revenue Code of 1986, as
amended) or any applicable agreement that could materially adversely affect
the business, properties, business prospects,
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condition (financial or otherwise) or results of operations of the Company
and its Subsidiaries, taken as a whole.
(z) Each of the Company and its Subsidiaries has obtained and will
maintain in force through the Closing Date any and all applicable federal,
state or local permits, licenses, approvals, leases and permissions, and
has filed all applications, certifications, forms and other documents,
necessary for its bottling operations, its use of spring water from each of
the sources described in the Registration Statement and Prospectus as being
currently in use or, to the extent applicable based on the developmental
stage of such source, under development for future use and its packaging
and labeling of its bottled water products. Neither the company nor any of
its Subsidiaries knows or has reason to believe that it will be unable to
obtain the applicable federal, state or local permits, licenses, approvals,
leases or permissions described above with respect to spring water sources
currently under development once bottling operations, the use of spring
water, and the packaging and labeling of bottled water products commences
at such source.
(aa) The water processed in the bottling operations of the Company or
any of its Subsidiaries derived from each source of spring water disclosed
in the Registration Statement and the Prospectus as being currently in use
or under development for future use, to the extent applicable, as of the
date hereof and as of the Closing Date, meets all applicable quality and
safety laws, standards and regulations promulgated by all federal, state
and local regulatory bodies and by the International Bottled Water
Association, to the extent required by such laws, standards and
regulations, and has been tested by certified microbiological laboratories,
including performance of certified bacteriological analyses.
4. Representations and Warranties of the Selling Shareholders. Each Selling
Shareholder, severally and not jointly, represents, warrants and covenants to
each Underwriter that:
(a) Such Selling Shareholder has full power and authority to enter
into this Agreement and the Agreement and Power of Attorney. All
authorizations and consents necessary for the execution and delivery by
such Selling Shareholder of the Agreement and Power of Attorney, and for
the execution of this Agreement on behalf of such Selling Shareholder, have
been given. Each of the Agreement and Power of Attorney and this Agreement
has been duly authorized, executed and delivered by or on behalf of such
Selling Shareholder and constitutes a valid and binding agreement of such
Selling Shareholder and is enforceable against such Selling Shareholders in
accordance with the terms thereof and hereof.
(b) Such Selling Shareholder now has, and at the time of delivery
thereof hereunder will have, (i) good and marketable title to the Shares to
be sold by such Selling Shareholder hereunder, free and clear of all liens,
encumbrances and claims whatsoever (other than pursuant to the Agreement
and Power of Attorney), and (ii) full legal right and power, and all
authorizations and approvals required by law, to sell, transfer and deliver
such Shares to the Underwriters hereunder and to make the representations,
warranties and agreements made by such Selling
11
Shareholder herein. Upon the delivery of and payment for such Shares
hereunder, such Selling Shareholder will deliver good and marketable title
thereto, free and clear of all liens, encumbrances and claims whatsoever.
(c) On the Closing Date all stock transfer and other taxes (other than
income taxes) which are required to be paid in connection with the sale and
transfer of the Shares to be sold by such Selling Shareholder to the
several Underwriters hereunder will have been fully paid or provided for by
such Selling Shareholder and all laws imposing such taxes will have been
fully complied with.
(d) The performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of
such Selling Shareholder pursuant to the terms or provisions of, or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the acceleration of any obligation
under, if such Selling Shareholder is a corporation or partnership, the
organizational documents of such Selling Shareholder, or, as to all such
Selling Shareholders, any contract or other agreement to which such Selling
Shareholder is a party or by which such Selling Shareholder or any of its
property is bound, or under any ruling, decree, judgment, order, statute,
rule or regulation of any court or other governmental agency or body having
jurisdiction over such Selling Shareholder or the property of such Selling
Shareholder.
(e) No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required for
the consummation by such Selling Shareholder of the transactions on its
part contemplated herein and in the Agreement and Power of Attorney, except
such as have been obtained under the Act or the Rules and Regulations and
such as may be required (i) under state securities or Blue Sky laws or the
by-laws and rules of the NASD in connection with the purchase and
distribution by the Underwriters of the Shares to be sold by such Selling
Shareholder and (ii) in connection with the purchase and distribution of
Shares outside of the United States.
(f) Neither Xxxx Markets nor Xxxxx (as such terms are defined in
Section 7 below) have knowledge of any material fact or condition not set
forth in the Registration Statement or the Prospectus which has adversely
affected, or may adversely affect, the business, properties, business
prospects, condition (financial or otherwise) or results of operations of
the Company, and the sale of the Shares proposed to be sold by such Selling
Shareholder is not prompted by any such knowledge.
(g) All information with respect to such Selling Shareholder contained
in the Registration Statement and the Prospectus (as amended or
supplemented, if the Company shall have filed with the Commission any
amendment or supplement thereto) does not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading.
12
(h) Other than as permitted by the Act and the Rules and Regulations,
such Selling Shareholder has not distributed and will not distribute any
preliminary prospectus, the Prospectus or any other offering material in
connection with the offering and sale of the Shares. Such Selling
Shareholder has not taken, directly or indirectly, any action intended, or
which might reasonably be expected, to cause or result in, under the Act or
otherwise, or which has caused or resulted in, stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares.
(i) Certificates in negotiable form for the Firm Shares to be sold
hereunder by such Selling Shareholder have been placed in custody, for the
purpose of making delivery of such Firm Shares under this Agreement, under
the Agreement and Power of Attorney which appoints the Company as custodian
(the "Custodian") for each Selling Shareholder. Such Selling Shareholder
agrees that the Shares represented by the certificates held in custody for
him or it under the Agreement and Power of Attorney are for the benefit of
and coupled with and subject to the interest hereunder of the Custodian,
the Attorneys-in-Fact, the Underwriters, each other Selling Shareholder and
the Company, that the arrangements made by such Selling Shareholder for
such custody and the appointment of the Custodian and the Attorneys-in-Fact
by such Selling Shareholder are irrevocable, and that the obligations of
such Selling Shareholder hereunder shall not be terminated by operation of
law, whether by the death, disability, incapacity or liquidation of any
Selling Shareholder or the occurrence of any other event. If any Selling
Shareholder should die, become disabled or incapacitated or be liquidated
or if any other such event should occur before the delivery of the Shares
hereunder, certificates for the Shares shall be delivered by the Custodian
in accordance with the terms and conditions of this Agreement and actions
taken by the Attorneys-in-Fact and the Custodian pursuant to the Agreement
and Power of Attorney shall be as valid as if such death, liquidation,
incapacity or other event had not occurred, regardless of whether or not
the Custodian or the Attorneys-in-Fact, or any of them, shall have received
notice thereof.
5. Agreements of the Company and the Selling Shareholders. The Company and
the Selling Shareholders (as to Sections (j), (o), (p), (q) and (r) only) agree,
severally and not jointly, with the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date or
thereafter during such period as the Prospectus is required by law to be
delivered in connection with sales of the Shares by an Underwriter or
dealer, file any amendment or supplement to the Registration Statement or
the Prospectus, unless a copy thereof shall first have been submitted to
the Representatives within a reasonable period of time prior to the filing
thereof and the Representatives shall not have objected thereto in good
faith.
(b) The Company will use its best efforts to cause the Registration
Statement to become effective, and will notify the Representatives
promptly, and will confirm such advice in writing, (1) when the
Registration Statement has become effective and when any post-effective
amendment thereto becomes effective, (2) of any request by the Commission
for amendments or supplements
13
to the Registration Statement or the Prospectus or for additional
information, (3) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose or the threat thereof, (4)
of the happening of any event during the period mentioned in the second
sentence of Section 5(e) that makes any statement of a material fact made
in the Registration Statement or the Prospectus untrue or that requires the
making of any changes in the Registration Statement or the Prospectus in
order to make the statements therein, in light of the circumstances in
which they are made, not misleading and (5) of receipt by the Company or
any representative or attorney of the Company of any other communication
from the Commission relating to the Company, the Registration Statement,
any preliminary prospectus or the Prospectus. If at any time the Commission
shall issue any 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 moment. The Company will
use its best efforts to comply with the provisions of and make all
requisite filings with the Commission pursuant to Rule 430A and to notify
the Representatives promptly of all such filings.
(c) The Company will furnish to the Representatives, without charge,
two signed copies of the Registration Statement and of any post-effective
amendment thereto and will furnish to the Representatives, without charge,
for transmittal to each of the other Underwriters, a copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules but without exhibits.
(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the
Company will deliver to each of the Underwriters, without charge, as many
copies of the Prospectus or any amendment or supplement thereto as the
Representatives may reasonably request. The Company consents to the use of
the Prospectus or any amendment or supplement thereto by the several
Underwriters and by all dealers to whom the Shares may be sold, both in
connection with the offering or sale of the Shares and for any period of
time thereafter during which the Prospectus is required by law to be
delivered in connection therewith. If during such period of time any event
shall occur which in the judgment of the Company or counsel to the
Underwriters should be set forth in the Prospectus in order to make any
statement of a material fact therein, in the light of the circumstances
under which it was made, not misleading, or if it is necessary to
supplement or amend the Prospectus to comply with law, the Company will
forthwith prepare and duly file with the Commission an appropriate
supplement or amendment thereto, and will deliver to each of the
Underwriters, without charge, such number of copies thereof as the
Representatives may reasonably request.
(f) Prior to any public offering of the Shares by the Underwriters,
the Company will cooperate with the Representatives and counsel to the
Underwriters in connection with the registration or qualification of the
Shares for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representatives may request; provided, that in no
event shall the Company be obligated to qualify
14
to do business in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general service of process in any
jurisdiction where it is not now so subject.
(g) During the period of five years commencing on the Effective Date,
the Company will furnish to the Representatives and each other Underwriter
who may so request copies of such financial statements and other periodic
and special reports as the Company may from time to time distribute
generally to the holders of any class of its capital stock, and will
furnish to the Representatives and each other Underwriter who may so
request a copy of each annual or other report it shall be required to file
with the Commission.
(h) The Company will make generally available to holders of its
securities as soon as may be practicable but in no event later than the
last day of the fifteenth full calendar month following the calendar
quarter in which the Effective Date falls, an earnings statement (which
need not be audited but shall be in reasonable detail) for a period of 12
months ended commencing after the Effective Date, and satisfying the
provisions of Section 11(a)of the Act (including Rule 158 of the Rules and
Regulations).
(i) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company will pay, or
reimburse if paid by the Representatives, all costs and expenses incident
to the performance of the obligations of the Company and the Selling
Shareholders under this Agreement and in connection with the transactions
contemplated hereby, including but not limited to costs and expenses of or
relating to (1) the preparation, printing and filing of the Registration
Statement and exhibits to it, each preliminary prospectus, the Prospectus
and any amendment or supplement to the Registration Statement or the
Prospectus, (2) the preparation and delivery of certificates representing
the Shares, (3) the word processing, printing and reproduction of this
Agreement, the Agreement Among Underwriters, any Dealer Agreements and any
Underwriters' Questionnaire, (4) furnishing (including costs of shipping,
mailing and courier) such copies of the Registration Statement, the
Prospectus and any preliminary prospectus, and all amendments and
supplements thereto, as may be requested for use in connection with the
offering and sale of the Shares by the Underwriters or by dealers to whom
Shares may be sold, (5) the listing of the Shares on the New York Stock
Exchange, (6) any filings required to be made by the Underwriters with the
NASD, and the fees, disbursements and other charges of counsel for the
Underwriters in connection therewith, (7) the registration or qualification
of the Shares for offer and sale under the securities or Blue Sky laws of
such jurisdictions designated pursuant to Section 5(f), including the fees,
disbursements and other charges of counsel to the Underwriters in
connection therewith, and the preparation and printing of preliminary,
supplemental and final Blue Sky memoranda, (8) counsel to the Company and
counsel to the Selling Shareholders, (9) the transfer agent for the Shares
and (10) the Accountants. The Underwriters will endeavor promptly to
forward notice to the Company of all costs and expenses to be paid or
reimbursed by the Company as described above. Except as provided in this
Section 5(i) and the following Section 5(j), the Underwriters shall pay all
their own expenses, including the fees and disbursements of counsel.
15
(j) If this Agreement shall be terminated by the Company or the
Selling Shareholders pursuant to any of the provisions hereof (otherwise
than pursuant to Section 9) or if for any reason the Company or any Selling
Shareholder shall be unable to perform its obligations hereunder, the
Company will reimburse the several Underwriters for all out-of-pocket
expenses (including the fees, disbursements and other charges of counsel to
the Underwriters) reasonably incurred by them in connection herewith.
(k) The Company will not at any time, directly or indirectly, take any
action intended, or which might reasonably be expected, to cause or result
in, or which will constitute, stabilization of the price of the shares of
Common Stock to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering and sale
of the Shares to be sold by the Company in the manner set forth in the
Prospectus under "Use of Proceeds" and shall file such reports with the
Commission with respect to the sale of the Shares and the application of
the proceeds therefrom as may be required in accordance with Rule 463 under
the Act.
(m) During the period of 180 days commencing at the Closing Date, the
Company will not, without the prior written consent of PaineWebber
Incorporated, directly or indirectly, sell, offer to sell, grant any option
for the sale of, or otherwise dispose of, any Common Stock or securities
convertible into Common Stock, other than to the Underwriters pursuant to
this Agreement and other than pursuant to employee benefit plans, provided,
that the Company will not grant options to purchase shares of Common Stock
pursuant to such employee benefit plans at a price less than the initial
public offering price.
(n) The Company will not, and will cause each of its executive
officers, directors and each beneficial owner of more than 5% of the
outstanding shares of Common Stock to enter into agreements with the
Representatives in the form set forth in Exhibit B to the effect that they
will not, for a period of 180 days after the commencement of the public
offering of the Shares, without the prior written consent of PaineWebber
Incorporated, sell, contract to sell or otherwise dispose of any shares of
Common Stock or rights to acquire such shares (other than pursuant to
employee stock option plans, employee stock purchase plans or in connection
with other employee incentive compensation arrangements), except to the
extent that any beneficial owner of more than 5% of the outstanding shares
of Common Stock is a Selling Shareholder under this Agreement.
(o) The Selling Shareholders will not, for a period of 180 days after
the effective date of the Registration Statement, without the prior written
consent of PaineWebber Incorporated, sell, contract to sell or otherwise
dispose of any shares of Common Stock, other than pursuant to bona fide
gifts or by operation of law to persons who agree in writing with the
Representatives to be bound by the provisions of this Section 5(n).
(p) No Selling Shareholder has taken, directly or indirectly, any
action intended, or which might reasonably be expected, to cause or result,
under the Act or otherwise, in, or which has constituted, stabilization or
manipulation of the
16
price of any security of the Company to facilitate the sale or resale of
the Shares. The Selling Shareholders will not, without the prior written
consent of the Representatives, make any bid for or purchase any shares of
Common Stock during the 180-day period following the date hereof.
(q) As soon as any Selling Shareholder is advised thereof, such
Selling Shareholder will advise the Representatives and confirm such advice
in writing, (1) of receipt by such Selling Shareholder, or by any
representative of such Selling Shareholder, of any communication from the
Commission relating to the Registration Statement, the Prospectus or any
preliminary prospectus, or any notice or order of the Commission relating
to the Company or any of the Selling Shareholders in connection with the
transactions contemplated by this Agreement and (2) of the happening of any
event during the period from and after the Effective Date that in the
judgment of such Selling Shareholders makes any statement of material fact
with respect to such Selling Shareholder made in the Registration Statement
or the Prospectus untrue or that requires the making of any changes in the
Registration Statement or the Prospectus in order to make such statements
therein, in light of the circumstances in which they were made, not
misleading.
(r) The Selling Shareholders will deliver to the Representatives prior
to or on the Effective Date a properly completed and executed United States
Treasury Department Form W-9 (or other applicable form or statement
specified by the Treasury Department regulations in lieu thereof).
6. Conditions of the Obligations of the Underwriters. In addition to the
execution and delivery of the Price Determination Agreement, the obligations of
each Underwriter hereunder are subject to the following conditions:
(a) Notification that the Registration Statement has become effective
shall be received by the Representatives not later than 5:00 p.m., New York
City time, on the date of this Agreement or at such later date and time as
shall be consented to in writing by the Representatives and all filings
required by Rule 424 of the Rules and Regulations and Rule 430A shall have
been made.
(b) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
be pending or threatened by the Commission, (ii) no order suspending the
effectiveness of the Registration Statement or the qualification or
registration of the Shares under the securities or Blue Sky laws of any
jurisdiction shall be in effect and no proceeding for such purpose shall be
pending before or threatened by the Commission or the authorities of any
such jurisdiction, (iii) any request for additional information on the part
of the staff of the Commission or any such authorities shall have been
complied with to the satisfaction of the staff of the Commission or such
authorities and (iv) after the date hereof no amendment or supplement to
the Registration Statement or the Prospectus shall have been filed unless a
copy thereof was first submitted to the Representatives and the
Representatives did not object thereto in good faith, and the
Representatives shall have received certificates, dated the Closing Date
and the Option Closing Date
17
and signed by the Chief Executive Officer or the Chairman of the Board of
Directors of the Company and the Chief Financial Officer of the Company
(who may, as to proceedings threatened, rely upon the best of their
information and belief), to the effect of clauses (i), (ii) and (iii).
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there shall not have been,
and no development shall have occurred which could reasonably be expected
to result in, a material adverse change in the general affairs, business,
business prospects, properties, management, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, in each case other than as set forth in or contemplated
by the Registration Statement and the Prospectus and (ii) neither the
Company nor any of its Subsidiaries shall have sustained any material loss
or interference with its business or properties from fire, explosion, flood
or other casualty, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action, order or
decree, which is not set forth in the Registration Statement and the
Prospectus, if in the judgment of the Representatives any such development
makes it impracticable or inadvisable to consummate the sale and delivery
of the Shares by the Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall have been no
litigation or other legal or governmental proceeding instituted against the
Company or any of its Subsidiaries or any of their respective officers or
directors in their capacities as such, before or by any Federal, state or
local court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, in which litigation or legal or
governmental proceeding an unfavorable ruling, decision or finding would
materially and adversely affect the business, properties, business
prospects, condition (financial or otherwise) or results of operations of
the Company and its Subsidiaries taken as a whole.
(e) Each of the representations and warranties of the Company and the
Selling Shareholders contained herein shall be true and correct in all
material respects at the Closing Date and, with respect to the Option
Shares, at the Option Closing Date, as if made at the Closing Date and,
with respect to the Option Shares, at the Option Closing Date, and all
covenants and agreements herein contained to be performed on the part of
the Company and the Selling Shareholders and all conditions herein
contained to be fulfilled or complied with by the Company and the Selling
Shareholders at or prior to the Closing Date and, with respect to the
Option Shares, at or prior to the Option Closing Date, shall have been duly
performed, fulfilled or complied with.
(f) The Representatives shall have received opinions, dated the
Closing Date and, with respect to the Option Shares, the Option Closing
Date, and satisfactory in form and substance to counsel for the
Underwriters, from Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx and McQuaide, Blasko,
Xxxxxxxx, Xxxxxxx & Xxxxxxxx, Inc. counsel to the Company, to the effect
set forth in Exhibit C, from Xxxx X. Xxxxxxxx, Esq., general counsel of
Xxxx Markets, Inc., to the effect set
18
forth in Exhibit D and from [ ], counsel to Xxxxxx X. Xxxxx, III, to the
effect set forth in Exhibit E. The Representatives shall have received
certificates dated the Closing Date, and satisfactory in form and substance
to counsel for the Underwriters, from each Selling Shareholder (other than
Xxxxxx X. Xxxxx, III) to the effect set forth in Exhibit F.
(g) The Representatives shall have received an opinion, dated the
Closing Date and the Option Closing Date, from Cravath, Swaine & Xxxxx,
counsel to the Underwriters, with respect to the Registration Statement,
the Prospectus and this Agreement, which opinion shall be satisfactory in
all respects to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have
furnished to the Representatives a letter, dated the date of its delivery,
addressed to the Representatives and in form and substance satisfactory to
the Representatives, confirming that they are independent accountants with
respect to the Company as required by the Act and the Rules and Regulations
and with respect to the financial and other statistical and numerical
information contained in the Registration Statement. At the Closing Date
and, as to the Option Shares, the Option Closing Date, the Accountants
shall have furnished to the Representatives a letter, dated the date of its
delivery, which shall confirm, on the basis of a review in accordance with
the procedures set forth in the letter from the Accountants, that nothing
has come to their attention during the period from the date of the letter
referred to in the prior sentence to a date (specified in the letter) not
more than five days prior to the Closing Date and the Option Closing Date
which would require any change in their letter dated the date of the
Prospectus, if it were required to be dated and delivered at the Closing
Date and the Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, the Option
Closing Date, there shall be furnished to the Representatives an accurate
certificate, dated the date of its delivery, signed by each of the Chief
Executive Officer and the Chief Financial Officer of the Company, in form
and substance satisfactory to the Representatives, to the effect that:
(i) each signer of such certificate has carefully examined the
Registration Statement and the Prospectus and (A) as of the date of
such certificate, such documents are true and correct in all material
respects and do not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein
not untrue or misleading and (B) since the Effective Date, no event
has occurred as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
light of the circumstances under which they were made, not misleading
in any material respect;
(ii) each of the representations and warranties of the Company
contained in this Agreement were, when originally made, and are, at
the time such certificate is delivered, true and correct in all
material respects;
19
(iii) each of the covenants required herein to be performed by
the Company on or prior to the delivery of such certificate has been
duly, timely and fully performed and each condition herein required to
be complied with by the Company on or prior to the date of such
certificate has been duly, timely and fully complied with; and
(iv) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, (A) there has not
been, and no development has occurred which could reasonably be
expected to result in, a material adverse change in the general
affairs, business, business prospects, properties, management,
condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, in each case
other than as set forth in or contemplated by the Registration
Statement and the Prospectus and (B) neither the Company nor any of
its Subsidiaries has sustained any material loss or interference with
its business or properties from fire, explosion, flood or other
casualty, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action,
order or decree, which is not set forth in the Registration Statement
and the Prospectus,
and such other matters as the Representatives may reasonably request.
(j) At the Closing Date there shall have been furnished to the
Representatives a certificate, dated the date of its delivery, signed by
the Attorneys-in-Fact on behalf of each of the Selling Shareholders, in
form and substance satisfactory to the Representatives, to the effect that
the representations and warranties of each of the Selling Shareholders
contained herein are true and correct in all material respects on and as of
the date of such certificate as if made on and as of the date of such
certificate, and each of the covenants and conditions required herein to be
performed or complied with by the Selling Shareholders on or prior to the
date of such certificate has been duly, timely and fully performed or
complied with.
(k) On or prior to the Closing Date, the Representatives shall have
received the executed agreements referred to in Section 5(i).
(l) The Shares shall be qualified for sale in such states as the
Representatives may reasonably request, each such qualification shall be in
effect and not subject to any stop order or other proceeding on the Closing
Date and the Option Closing Date.
(m) Prior to the Closing Date, the Shares shall have been duly
authorized for listing by the New York Stock Exchange upon official notice
of issuance.
(n) The National Association of Securities Dealers, Inc. shall have
approved the underwriting terms and arrangements and such approval shall
not have been withdrawn or limited.
20
(o) The Company and the Selling Shareholders shall have furnished to
the Representatives such certificates, in addition to those specifically
mentioned herein, as the Representatives may have reasonably requested as
to the accuracy and completeness at the Closing Date, with respect to the
Company and the Selling Shareholders, and the Option Closing Date, with
respect to the Company, of statements in the Registration Statement or the
Prospectus, only with respect to the Company by the Company and with
respect to the Selling Shareholders by such Selling Shareholders, as to the
accuracy at the Closing Date and the Option Closing Date of the
representations and warranties of the Company and the Selling Shareholders
herein only with respect to the Company by the Company and with respect to
the Selling Shareholders by such Selling Shareholders, as to the
performance by the Company and the Selling Shareholders of its and their
respective obligations hereunder, or as to the fulfillment of the
conditions concurrent and precedent to the obligations hereunder of the
Representatives only with respect to the Company by the Company and with
respect to the Selling Shareholders by such Selling Shareholders.
(p) No changes shall have been made to the certificate of
incorporation and by-laws of the Company and each of its Subsidiaries
subsequent to the date hereof and prior to the Closing Date, or, if later,
the Option Closing Date.
7. Indemnification. (a) Each of the Company, Xxxx Markets, Inc. ("Xxxx
Markets") and Xxxxxx X. Xxxxx, III ("Xxxxx"), jointly and severally, will
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person, if any, who controls each
Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and
against any and all losses, claims, liabilities, expenses and damages
(including, but not limited to, any and all investigative, legal and other
expenses reasonably incurred in connection with, and any and all amounts paid in
settlement of, any action, suit or proceeding between any of the indemnified
parties and any indemnifying parties or between any indemnified party and any
third party, or otherwise, or any claim asserted), as and when incurred, to
which any Underwriter, or any such person, may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, liabilities, expenses or
damages arise out of or are based on (i) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus, or in any application or other
document executed by or on behalf of the Company or based on written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify the Shares under the Securities Laws thereof or filed with the
Commission, (ii) the omission or alleged omission to state in such document a
material fact required to be stated in it or necessary to make the statements in
it not misleading or (iii) any act or failure to act or any alleged act or
failure to act by any Underwriter in connection with, or relating in any manner
to, the Shares or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, liability, expense or damage arising
out of or based upon matters covered by clause (i) or (ii) above (provided that
the Company shall not be liable under this clause (iii) to the extent it is
finally judicially determined by a court of competent jurisdiction that such
loss, claim, liability, expense or damage resulted directly
21
from any such acts or failures to act undertaken or omitted to be taken by such
underwriter through its gross negligence or willful misconduct); (2) provided
that the Company, Xxxx Markets and Xxxxx will not be liable to the extent that
such loss, claim, liability, expense or damage (A) arises from the sale of the
Shares in the public offering to any person by an Underwriter and is based on an
untrue statement or omission or alleged untrue statement or omission made in
reliance on and in conformity with information relating to any Underwriter
furnished in writing to the Company by the Representatives on behalf of any
Underwriter expressly for inclusion in the Registration Statement, any
preliminary prospectus or the Prospectus or (B) results solely from an untrue
statement of a material fact contained in, or the omission of a material fact
from, such preliminary prospectus, which untrue statement or omission was
completely corrected in the Prospectus (as then amended or supplemented) if the
Company, Xxxx Markets or Xxxxx, as the case may be, shall sustain the burden of
proving that the Underwriters sold Shares to the person alleging such loss,
claim, liability, expense or damage without sending or giving, at or prior to
the written confirmation of such sale, a copy of the Prospectus (as then amended
or supplemented) if the Company had previously furnished copies thereof to the
Underwriters within a reasonable amount of time prior to such sale or such
confirmation, and the Underwriters failed to deliver the corrected Prospectus,
if required by the Act or by other law to have so delivered it and if delivered
would have been a complete defense against the person asserting such loss,
claim, liability, expense or damage. This indemnity agreement will be in
addition to any liability that the Company, Xxxx Markets or Xxxxx might
otherwise have. Notwithstanding the foregoing, the aggregate liability on Xxxxx
pursuant to the provisions of this paragraph shall be limited to an amount equal
to the aggregate purchase price received by Xxxxx from the sale of Xxxxx'x Firm
Shares hereunder.
(b) Each Underwriter will indemnify and hold harmless the Company, Xxxx
Markets, Xxxxx and each person, if any, who controls the Company, Xxxx Market or
Xxxxx within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, each director of the Company and Xxxx Markets and each officer of the
Company who signs the Registration Statement to the same extent as the foregoing
indemnity from the Company, Xxxx Markets and Xxxxx to each Underwriter, but only
insofar as losses, claims, liabilities, expenses or damages arise out of or are
based on any untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company by the Representatives on behalf
of such Underwriter expressly for use in the Registration Statement, the
Preliminary Prospectus or the Prospectus (as amended or supplemented). This
indemnity will be in addition to any liability that each Underwriter might
otherwise have; provided, however, that in no case shall any Underwriter be
liable or responsible for any amount in excess of the underwriting discounts and
commissions received by such Underwriter.
(c) Any party that proposes to assert the right to be indemnified under
this Section 7 will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 7, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such
-------------
(2) Precise wording of this clause (iii) to be discussed.
22
indemnifying party will not relieve it from any liability that it may have to
any indemnified party under the foregoing provisions of this Section 7 unless,
and only to the extent that, such omission results in the indemnifying party
being materially prejudiced. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its commencement,
the indemnifying party will be entitled to participate in and, to the extent
that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to assume
the defense of the action, with counsel satisfactory to the indemnified party,
and after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (3) a conflict
or potential conflict exists (based on advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which case
the indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party has not
in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not be liable for any settlement of any action or claim
effected without its written consent (which consent will not be unreasonably
withheld). No indemnifying party shall, without the prior written consent of
each indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding relating to
the matters contemplated by this Section 7 (whether or not any indemnified party
is a party thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising or
that may arise out of such claim, action or proceeding. Notwithstanding any
other provision of this Section 7(c), if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel, such indemnifying party agrees that it shall be liable
for any settlement effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
23
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 7 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company, Xxxx Markets, Xxxxx or
the Underwriters, the Company, Xxxx Markets, Xxxxx and the Underwriters will
contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, but after deducting any contribution received
by the Company, Xxxx Markets or Xxxxx from persons other than the Underwriters,
such as persons who control the Company, Xxxx Markets or Xxxxx within the
meaning of the Act, officers of the Company who signed the Registration
Statement and directors of the Company, who also may be liable for contribution)
to which the Company, Xxxx Markets or Xxxxx and any one or more of the
Underwriters may be subject in such proportion as shall be appropriate to
reflect the relative benefits received by the Company, Xxxx Markets and Xxxxx on
the one hand and the Underwriters on the other. The relative benefits received
by the Company, Xxxx Markets and Xxxxx 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, Xxxx
Markets and Xxxxx bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. If, but only if, the allocation provided by the
foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, Xxxx Markets and Xxxxx, on the one hand, and the
Underwriters, on the other, with respect to the statements or omissions which
resulted in such loss, claim, liability, expense or damage, or action in respect
thereof, as well as any other relevant equitable considerations with respect to
such offering. Such relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company, Xxxx Markets or Xxxxx, on the one hand, or the Representatives on
behalf of the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, Xxxx Markets, Xxxxx and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 7(d) were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 7(d) shall be deemed to
include, for purpose of this Section 7(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7(d), no Underwriter shall be required to contribute any amount in
excess of the underwriting discounts and commissions received by it and no
person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) will be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 7(d) are several in
proportion to their respective underwriting obligations and not joint. For
purposes of this Section 7(d), any person who controls a party to this Agreement
within the meaning of the Act will have the same rights to contribution as that
party, and each officer of the Company who signed the Registration
24
Statement will have the same rights to contribution as the Company, subject in
each case to the provisions hereof. Any party entitled to contribution, promptly
after receipt of notice of commencement of any action against such party in
respect of which a claim for contribution may be made under this Section 7(d),
will notify any such party or parties from whom contribution may be sought, but
the omission so to notify will not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have under
this Section 7(d). Except for a settlement entered into pursuant to the last
sentence of Section 7(c) hereof, no party will be liable for contribution with
respect to any action or claim settled without its written consent (which
consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company and the Selling
Shareholders contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any investigation made by or on behalf of the
Underwriters, (ii) acceptance of the Shares and payment therefore or (iii) any
termination of this Agreement.
8. Termination. The obligations of the several Underwriters under this
Agreement may be terminated at any time on or prior to the Closing Date (or,
with respect to the Option Shares, on or prior to the Option Closing Date), by
notice to the Company from the Representatives, without liability on the part of
any Underwriter to the Company or any Selling Shareholder, if, prior to delivery
and payment for the Shares (or the Option Shares, as the case may be), in the
sole judgment of the Representatives, (i) there has been, since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the Company's business, properties, business
prospects, condition (financial or otherwise) or results of operations, (ii)
trading in any of the equity securities of the Company shall have been suspended
by the Commission, the NASD, by an exchange that lists the Shares or by the
Nasdaq Stock Market, (iii) trading in securities generally on the New York Stock
Exchange or the Nasdaq Stock Market shall have been suspended or limited or
minimum or maximum prices shall have been generally established on such exchange
or over the counter market, or additional material governmental restrictions,
not in force on the date of this Agreement, shall have been imposed upon trading
in securities generally by such exchange or by order of the Commission or the
NASD or any court or other governmental authority, (iv) a general banking
moratorium shall have been declared by either Federal or New York State
authorities or (v) any material adverse change in the financial or securities
markets in the United States or in political, financial or economic conditions
in the United States or any outbreak or material escalation of hostilities or
declaration by the United States of a national emergency or war or other
calamity or crisis shall have occurred the effect of any of which is such as to
make it, in the sole judgment of the Representatives, impracticable or
inadvisable to market the Shares on the terms and in the manner contemplated by
the Prospectus.
9. Substitution of Underwriters. If any one or more of the Underwriters
shall fail or refuse to purchase any of the Firm Shares which it or they have
agreed to purchase hereunder, and the aggregate number of Firm Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate number of Firm Shares, the other
Underwriters shall be obligated, severally, to purchase the Firm Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase, in the proportions which the
25
number of Firm Shares which they have respectively agreed to purchase pursuant
to Section 1 bears to the aggregate number of Firm Shares which all such
non-defaulting Underwriters have so agreed to purchase, or in such other
proportions as the Representatives may specify; provided that in no event shall
the maximum number of Firm Shares which any Underwriter has become obligated to
purchase pursuant to Section 1 be increased pursuant to this Section 9 by more
than one-ninth of the number of Firm Shares agreed to be purchased by such
Underwriter without the prior written consent of such Underwriter. If any
Underwriter or Underwriters shall fail or refuse to purchase any Firm Shares and
the aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase exceeds one-tenth of the
aggregate number of the Firm Shares and arrangements satisfactory to the
Representatives and the Company for the purchase of such Firm Shares are not
made within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company or any
Selling Shareholder for the purchase or sale of any Shares under this Agreement.
In any such case either the Representatives 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 in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken pursuant to this Section 9 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
10. Miscellaneous. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified, shall be mailed
or delivered (a) if to the Company, at the office of the Company, 0 XxxxXxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000 (facsimile: 814-355-7810), Attention: Chief
Financial Officer, (b) if to any Selling Shareholder, _________________________,
or (c) if to the Underwriters, to the Representatives at the offices of
PaineWebber Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Finance Department (facsimile: 212-713-1053). Any such
notice shall be effective only upon receipt. Any notice under Section 8 or 9 may
be made by telex or telephone, but if so made shall be subsequently confirmed in
writing.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company and the Selling Shareholders and of the controlling
persons, directors and officers referred to in Section 7, and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" as used
in this Agreement shall not include a purchaser, as such purchaser, of Shares
from any of the several Underwriters.
With respect to any obligation joint and several of the Company and the
Selling Shareholders hereunder to make any payment, to indemnify for any
liability or to reimburse for any expense, notwithstanding the fact that such
obligation is a joint and several obligation of the Company and the Selling
Shareholders, the Underwriters (or any other person to whom such payment,
indemnification or reimbursement is owed) may pursue the Company with respect
thereto prior to pursuing any Selling Shareholder.
All representations, warranties and agreements of the Company and the
Selling Shareholders contained herein or in certificates or other instruments
delivered pursuant hereto shall remain operative and in full force and effect
regardless of any
26
investigation made by or on behalf of any Underwriter or any of its controlling
persons and shall survive delivery of and payment for the Shares hereunder.
Any action required or permitted to be taken by the Representatives under
this Agreement may be taken by them jointly or by PaineWebber Incorporated.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES
OF SUCH STATE.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
The Company, the Selling Shareholders and the Underwriters each hereby
irrevocably waive any right they may have to a trial by jury in respect of any
claim based upon or arising out of this Agreement or the transactions
contemplated hereby.
This Agreement may not be amended or otherwise modified or any provision
hereof waived except by an instrument in writing signed by the Representatives
and the Company.
27
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Selling Shareholders and the several Underwriters.
Very truly yours,
AQUAPENN SPRING WATER COMPANY, INC.
By:
-------------------------------------
Name:
Title:
THE SELLING SHAREHOLDERS
NAMED IN SCHEDULE I
ATTACHED HERETO
By:
------------------------------------
Attorney-in-Fact
Confirmed as of the date
first above mentioned:
PAINEWEBBER INCORPORATED
LAZARD FRERES & CO. LLC
XXXXXX/XXXXXX INCORPORATED
Acting on behalf of
themselves and as the
Representatives of the
other several Underwriters
named in Schedule II hereof.
By: PAINEWEBBER INCORPORATED
By:
---------------------------------
Name:
Title:
By: LAZARD FRERES & CO. LLC
By:
---------------------------------
Name:
Title:
28
By: XXXXXX/XXXXXX INCORPORATED
By:
--------------------------------
Name:
Title:
29
SCHEDULE I
SELLING SHAREHOLDERS
Total
Name of Number of
Selling Firm Shares
Shareholder to be Sold
----------- ------------
Xxxxxx X. Xxxxx, III 70,000
Aqua Works, Inc. 1,859,000
Xxxxxx X. Xxxxxx 32,444
Xxxxx & Xxxxxxx Urological Assoc. 27,036
Xxxxxx X. Xxxxxxx 14,420
Valassis Enterprises, L.P. 12,016
Xxxx X. and Xxxxxxx Xxx Xxxxxx 9,613
Xxxxx X. Xxxxxx 9,012
Xxxxxxx Xxxxxx 8,111
Xxxx X. Xxxxxxx, M.D., Inc. 7,811
Xxxxxx X. Xxxxxx 6,609
Xxxx X. Xxxxxx 6,008
Xxxxx Xxxx and Xxxxx Xxxx 5,408
X.X. Xxxxxxxxx and Xxxx X. Xxxxxxxxx 3,629
SCHEDULE II
UNDERWRITERS
Number of
Name of Firm Shares
Underwriters to be Purchased
------------ ---------------
PaineWebber Incorporated
Lazard Freres & Co. LLC
Xxxxxx/Xxxxxx Incorporated
EXHIBIT A
AQUAPENN SPRING WATER COMPANY, INC.
-----------
PRICE DETERMINATION AGREEMENT
[Date]
PAINEWEBBER INCORPORATED
LAZARD FRERES & CO. LLC
XXXXXX/XXXXXX INCORPORATED
As Representatives of the
several Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the Underwriting Agreement, dated [ ], 1997 (the
"Underwriting Agreement"), among AquaPenn Spring Water Company, Inc., a
Pennsylvania corporation (the "Company"), the Selling Shareholders named in
Schedule I thereto or hereto (the "Selling Shareholders") and the several
Underwriters named in Schedule II thereto or hereto (the "Underwriters"), for
whom PaineWebber Incorporated, Lazard Freres & Co. LLC and Xxxxxx/Xxxxxx
Incorporated are acting as Representatives (the "U.S. Representatives"). The
Underwriting Agreement provides for the purchase by the Underwriters from the
Company and the Selling Shareholders, subject to the terms and conditions set
forth therein, of an aggregate of [ ] shares (the "Firm Shares") of the
Company's common stock, no par value. This Agreement is the Price Determination
Agreement referred to in the Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the undersigned agree
with the Representatives as follows:
The initial public offering price per share for the Firm Shares shall be
$[ ].
The purchase price per share for the Firm Shares to be paid by the several
Underwriters shall be $[ ] representing an amount equal to the initial public
offering price set forth above, less $[ ] per share.
The Company represents and warrants to each of the Underwriters that the
representations and warranties of the Company set forth in Section 3 of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
The Selling Shareholders represent and warrant to each of the Underwriters
that the representations and warranties of the Selling Shareholders set forth in
Section 4 of the Underwriting Agreement are accurate as though expressly made at
and as of the date hereof.
As contemplated by the Underwriting Agreement, attached as Schedule II is a
completed list of the several Underwriters, which shall be a part of this
Agreement and the Underwriting Agreement.
This Agreement shall be governed by the law of the State of New York
without regard to the conflict of laws principles of such State.
If the foregoing is in accordance with your understanding of the agreement
among the Underwriters, the Company and the Selling Shareholders, please sign
and return to the Company a counterpart hereof, whereupon this instrument along
with all counterparts and together with the Underwriting Agreement shall be a
binding agreement among the Underwriters, the Company and the Selling
Shareholders in accordance with its terms and the terms of the Underwriting
Agreement.
Very truly yours,
AQUAPENN SPRING WATER COMPANY, INC.
By:
------------------------------------
Name:
Title:
THE SELLING SHAREHOLDERS
NAMED IN SCHEDULE I TO THE
UNDERWRITING AGREEMENT
By:
-------------------------------------
Attorney-in-Fact
Confirmed as of the date
first above mentioned:
PAINEWEBBER INCORPORATED
LAZARD FRERES & CO. LLC
XXXXXX/XXXXXX INCORPORATED
Acting on behalf of
themselves and as the
Representatives of the
other several Underwriters
named in Schedule II hereof.
By: PAINEWEBBER INCORPORATED
By:
-------------------------------
Name:
Title:
2
By: LAZARD FRERES & CO. LLC
By:
--------------------------------
Name:
Title:
By: XXXXXX/XXXXXX INCORPORATED
By:
--------------------------------
Name:
Title:
3
EXHIBIT B
November ___, 1997
PaineWebber Incorporated
Lazard Freres & Co. LLC
Xxxxxx/Xxxxxx Incorporated
As Representatives of the
several Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
AquaPenn Spring Water Company, Inc. (the "Company") proposes to sell shares
(the "Shares") of the Company's common stock, no par value (the "Common Stock")
in a public offering (the "Offering") for which PaineWebber Incorporated, Lazard
Freres & Co. LLC and Xxxxxx/Xxxxxx Incorporated intend to act as representatives
(the "Representatives") of the underwriting group (the "Underwriters"). The
undersigned is an owner of record or beneficially of shares of Common Stock of
the Company and/or of preferred stock, $1.00 par value (the "Preferred Stock"),
convertible into Common Stock of the Company.
The Underwriters have indicated that the prospect of other sales of Common
Stock for a period of months after the commencement of the Offering could be
detrimental to their underwriting effort. The Underwriters have requested that
the undersigned agree not to sell any shares of Common Stock, except in the
Offering, or of Preferred Stock for a period of 180 days (the "Lock-up Period")
after the effective date of the Registration Statement on Form S-1 (the
"Registration Statement") to be filed by the Company with the Securities and
Exchange Commission relating to the Shares.
AquaPenn and the Underwriters have requested that holders of Preferred
Stock exercise such holders' rights to convert Preferred Stock into Common
Stock, and the undersigned has indicated on the attached page the number of
shares of Preferred Stock which the undersigned is converting.
AquaPenn and the Underwriters have also agreed that the undersigned may
sell all or part of the undersigned's shares of Common Stock, including shares
received upon conversion of the Preferred Stock, as part of the Offering, and
the undersigned has indicated on the lines below if the undersigned wishes to
sell such Common Stock. The undersigned acknowledges that, if the undersigned
chooses to sell shares of Common Stock in the Offering, the undersigned must
enter into additional agreements with the Underwriters and the Company as may be
required by the Underwriters to carry out such sale, and that the undersigned
will be obligated to pay for a portion of the fees and expenses of the Offering
pro rata based on the total number of Shares offered and the
PaineWebber Incorporated
Lazard Freres & Co. LLC
Xxxxxx/Xxxxxx Incorporated
Page 2
number of shares of Common Stock offered by the undersigned. Any shares not
offered for sale by the undersigned will be subject to the Lock-up Period
described above.
The undersigned recognizes that it is in the best interests of the Company
and the undersigned, as holder of Preferred Stock, Common Stock and/or options
or warrants of the Company, that the Offering be completed. To facilitate the
Offering and in consideration of the Underwriters' agreeing to purchase and
publicly offer the Shares, the undersigned hereby agrees that the undersigned
will not during the Lock-up Period, without prior written consent of PaineWebber
Incorporated, which consent may be withheld at the sole discretion of
PaineWebber Incorporated, offer to sell, sell, contract to sell, pledge, grant
any option to sell, or otherwise dispose of, any shares of Preferred Stock,
Common Stock or options or warrants to acquire shares of Common Stock (the
"Lock-Up Shares") of which the undersigned is now, or may in the future become,
the beneficial owner (within the meaning of Rule 13d-3 under the Securities
Exchange of 1934), or publicly announce the undersigned's intention to do any of
the foregoing.
Notwithstanding the foregoing, the undersigned may transfer any or all of
the Lock-Up Shares (i) as a bona fide gift or gifts, (ii) by operation of law,
(iii) in the Offering as a selling stockholder if, and to the extent, permitted
by PaineWebber Incorporated; provided that in the case of clauses (i) and
(ii) above, it shall be a condition to the transfer that the transferee execute
an agreement stating that the transferee is receiving and holding the Lock-up
Shares subject to, and agrees to be bound by, the provisions of this letter
agreement.
It is understood that, if an underwriting agreement between the
Representatives and the Company (the "Underwriting Agreement") does not become
effective by March 31, 1998, or if the Underwriting Agreement shall terminate or
be terminated prior to the payment for and delivery of the Shares, you will
release the undersigned from all obligations under this letter agreement.
The undersigned also agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent against the transfer of any
Lock-Up Shares.
The undersigned understands that the Company and the Underwriters will
proceed with the Offering in reliance on this letter agreement.
PaineWebber Incorporated
Lazard Freres & Co. LLC
Xxxxxx/Xxxxxx Incorporated
Page3
The undersigned hereby represents and warrants that the undersigned has
full power and authority into this letter agreement. This agreement is
irrevocable, all authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the undersigned and all obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assignees of the undersigned.
Very truly yours,
By:
---------------------------------------
Name:
-------------------------------------
Co-owner:
---------------------------------
Name:
------------------------------------
[Please indicate capacity of person signing
if signing as a custodian or trustee or on
behalf of an entity]
[SEE ATTACHED PAGE]
[SHAREHOLDER: PLEASE READ AND COMPLETE THE FOLLOWING]
FOR ALL PREFERRED SHAREHOLDERS
1. If you are converting Preferred Stock, indicate the number of shares of
AquaPenn Preferred Stock beneficially owned by you which you are converting to
shares of AquaPenn Common Stock:__________ shares of Preferred Stock
2. If you are converting Preferred Stock:
a. Endorse your Preferred Stock certificate(s) on the back. Enclose your
Preferred Stock certificate(s) in the enclosed envelope.
b. You will receive back from AquaPenn a certificate evidencing the shares
of Common Stock that you will own upon conversion of your Preferred Stock. This
certificate will be issued to the same name as is on the certificate for
Preferred Stock which you are enclosing.
FOR ALL SHAREHOLDERS
1. If you would like to sell shares of Common Stock beneficially owned by
you in the initial public offering, please indicate the number of shares you
would like to sell (include any shares which you may receive upon conversion of
Preferred Stock and wish to sell): _________ shares of Common Stock.
2. If you are selling Common Stock:
a. AquaPenn will forward to you additional agreements to be signed in order
to participate as a selling shareholder, and at that time you will send in your
certificate(s) for AquaPenn Common Stock.
b. You must agree to the lock-up of your remaining shares of Preferred
Stock and Common Stock (which are not being sold in the initial public
offering).
PLEASE SIGN THE LETTER AGREEMENT WHERE INDICATED ON THE
PREVIOUS PAGE. MAKE A COPY AND RETURN THE ORIGINAL LETTER
AGREEMENT IN THE ENCLOSED FEDEX ENVELOPE. ALSO INCLUDE
YOUR CERTIFICATES FOR PREFERRED STOCK IF YOU ARE
CONVERTING YOUR PREFERRED STOCK
EXHIBIT C
Form of Opinion of
Counsel to the Company
The Company and each of its Subsidiaries is a corporation duly organized
and validly and presently subsisting under the laws of the jurisdiction of its
incorporation and has full corporate power and authority to conduct all the
activities conducted by it, to own or lease all the assets owned or leased by it
and to conduct its business as described in the Registration Statement and the
Prospectus. The Company is the sole record owner and, to our knowledge, the sole
beneficial owner of all of the capital stock of each of its Subsidiaries.
All of the outstanding shares of Common Stock have been, and the Shares,
when paid for by the Underwriters in accordance with the terms of the Agreement,
will be, duly authorized, validly issued, fully paid and nonassessable and will
not be subject to any preemptive or similar right under (i) the statutes,
judicial and administrative decisions, and the rules and regulations of the
governmental agencies of the Commonwealth of Pennsylvania (ii) the Company's
articles of incorporation or by-laws or (iii) any instrument, document, contract
or other agreement referred to in the Registration Statement or any instrument,
document, contract or agreement filed as an exhibit to the Registration
Statement. Except as described in the Registration Statement or the Prospectus,
to our knowledge, the Company is not a party to any commitment or arrangement to
issue, and there are no outstanding options, warrants or other rights calling
for the issuance of, any share of capital stock of the Company or any Subsidiary
to any person or any security or other instrument that by its terms is
convertible into, exercisable for or exchangeable for capital stock of the
Company.
No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Shares in the United States by the Company, in connection with the execution,
delivery and performance of the Agreement(3) by the Company or in connection
with the taking by the Company of any action contemplated thereby or, if so
required, all such consents, approvals, authorizations and orders, specifying
the same have been obtained and are in full force and effect, except such as
have been obtained under the Act and the Rules and Regulations and such as may
be required under state securities or "Blue Sky" laws or by the by-laws and
rules of the NASD in connection with the purchase and distribution by the
Underwriters of the Shares to be sold by the Company and the Selling
Shareholders.
The authorized, issued and outstanding capital stock of the Company is as
set forth in the Registration Statement and the Prospectus under the caption
"Capitalization." The description of the Common Stock contained in the
Prospectus is complete and
----------------
(3) All references in this opinion to the Agreement shall include the Price
Determination Agreement.
accurate in all material respects. The form of certificate used to evidence the
Common Stock is in due and proper form and complies with all applicable
statutory requirements.
The Registration Statement and the Prospectus comply in all material
respects as to form with the requirements of the Act and the Rules and
Regulations (except that we express no opinion as to financial statements,
schedules and other financial and statistical data contained in the Registration
Statement or the Prospectus).
To our knowledge, any instrument, document, lease, license, contract or
other agreement (collectively, "Documents") required to be described or referred
to in the Registration Statement or the Prospectus has been properly described
or referred to therein and any Document required to be filed as an exhibit to
the Registration Statement has been filed as an exhibit thereto or has been
incorporated as an exhibit by reference in the Registration Statement; and no
default exists in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any Document filed or required to
be filed as an exhibit to the Registration Statement.
To our knowledge, except as disclosed in the Registration Statement or the
Prospectus, the Company is not a party to any agreement that gives a person or
entity the right to require the registration under the Act of shares of Common
Stock or other securities of the Company by reason of the filing or
effectiveness of the Registration Statement.
To our knowledge, the Company is not in violation of, or in default with
respect to, any law, rule, regulation, order, judgment or decree, except as may
be described in the Prospectus or such as in the aggregate do not now have and
will not in the future have a material adverse effect upon the operations,
business or assets of the Company and the Subsidiaries, taken as a whole.
To our knowledge, each of the Company and its Subsidiaries has obtained any
and all applicable federal, state or local permits, licenses, approvals, leases
and permissions and has filed all applications, certifications, forms and other
documents necessary or appropriate for its bottling operations, its use of
spring water from each of the sources described in the Registration Statement
and Prospectus as being currently in use or, to the extent applicable based on
the developmental stage of such source, under development for future use and its
packaging and labeling of its bottled water products. As of the date hereof and
as of the Closing Date, all such permits, licenses, approvals, leases,
permissions, applications, certifications, forms and other documents are in
force.
To our knowledge, the water processed in the bottling operations of the
Company or any of its Subsidiaries derived from each source of spring water
disclosed in the Registration Statement and the Prospectus as being currently in
use or under development for future use, to the extent applicable, as of the
date hereof and as of the Closing Date, meets all applicable quality and safety
laws, standards and regulations promulgated by all federal, state and local
regulatory bodies and by the International Bottled Water Association, to the
extent required by such laws, standards and regulations, and has been tested by
certified microbiological laboratories, including performance of certified
bacteriological analyses.
All descriptions in the Prospectus of statutes, regulations or legal or
governmental proceedings are accurate and fairly present the information
required to be shown.
The Company has full corporate power and authority to enter into the
Agreement, and the Agreement has been duly authorized, executed and delivered by
the Company, is a valid and binding agreement of the Company and, except for the
indemnification and contribution provisions thereof, as to which we express no
opinion, is enforceable against the Company in accordance with the terms
thereof.
The execution and delivery by the Company of, and the performance by the
Company of the Agreement do not and will not (i) violate the articles of
incorporation or by-laws of the Company, (ii) breach or result in a default
under, cause the time for performance of any obligation to be accelerated under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any of the assets of the Company or any of its Subsidiaries pursuant to the
terms of, (x) any indenture, mortgage, deed of trust, loan agreement, bond,
debenture, note agreement, capital lease or other evidence of indebtedness of
which we have knowledge, (y) any voting trust arrangement or any contract or
other agreement to which the Company is a party that restricts the ability of
the Company to issue securities and of which we have knowledge or (z) any
Document filed as an exhibit to the Registration Statement, (iii) breach or
otherwise violate any existing obligation of the Company under any court or
administrative order, judgment or decree of which we have knowledge or (iv)
violate applicable provisions of any statute or regulation in the Commonwealth
of Pennsylvania, [the States of Florida or California] or of the United
States.
Delivery of certificates for the Shares sold by the Company will transfer
valid and marketable title thereto to each Underwriter that has purchased such
Shares in good faith and without notice of any adverse claim with respect
thereto.
The Company is not an "investment company" or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
The Shares have been duly authorized for listing by the New York Stock
Exchange upon official notice of issuance.
We hereby confirm to you that we have been advised by the Commission that
the Registration Statement has become effective under the Act and that no order
suspending the effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been instituted or is pending, or to our
knowledge threatened or contemplated.
We hereby further confirm to you that there are no legal or governmental
actions, suits, proceedings or investigations pending or, to our knowledge,
overtly threatened in writing against the Company or any of its Subsidiaries, or
any of their respective officers or directors in their capacities as such,
before or by any court, governmental agency or arbitrator which (i) seek to
challenge the legality or enforceability of the Agreement, (ii) seek to
challenge the legality or enforceability of any of the Documents filed, or
required to be filed, as exhibits to the Registration Statement, (iii) seek
damages or other remedies with respect to any of the Documents filed, or
required to be filed, as exhibits to the Registration Statement, (iv) except as
set forth in or contemplated by the Registration Statement and the Prospectus,
seek money damages in excess of $[ ] or seek to impose criminal penalties upon
the Company, any of its Subsidiaries or any of their respective officers or
directors in their capacities as such and of which we have knowledge or
(v) seek to enjoin any of the business activities of the Company or any of its
Subsidiaries or the transactions described in the Prospectus and of which we
have knowledge.
We have participated in the preparation of the Registration Statement and
the Prospectus and, without assuming any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus or in any amendment or supplement thereto, nothing
has come to our attention that causes us to believe that, on the Effective Date
and as of the Closing Date and the Option Closing Date, the Registration
Statement or any amendment thereto contained or contains any untrue statement of
a material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that any Prospectus or any amendment or supplement thereto, on the date such
Prospectus was issued, at the time any such amended or supplemented Prospectus
was issued, at the Closing Date and the Option Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances in which they were made, not misleading (except that we
express no opinion as to financial statements, schedules and other financial and
statistical data contained in the Registration Statement or the Prospectus.
The foregoing opinion is subject to the qualification that the
enforceability of the Agreement may be: (i) subject to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally; and (ii) subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in equity)
including, without limitation, principles of commercial reasonableness or
conscionability and an implied covenant of good faith and fair dealing.
This letter is furnished by us solely for your benefit in connection with
the transactions referred to in the Agreement and may not be circulated to, or
relied upon by, any other person, except that this letter may be relied upon by
your counsel in connection with the opinion letter to be delivered to you
pursuant to Section 5(g)of the Agreement.
EXHIBIT D
Form of Opinion
of Counsel to
Xxxx Markets, Inc.
Xxxx Markets, Inc. ("Weis") has full power and authority to enter into the
Agreement and the Agreement and Power of Attorney and to sell, transfer and
deliver its Shares pursuant to the Agreement and the Agreement and Power of
Attorney. All authorizations and consents necessary for the execution and
delivery of the Agreement and the Agreement and Power of Attorney on behalf of
Weis have been given. The delivery of the Shares on behalf of Weis pursuant to
the terms of the Agreement and payment therefor by the Underwriters will
transfer good and marketable title to such Shares to the several Underwriters
purchasing such Shares, free and clear of all liens, encumbrance and claims
whatsoever.
Each of the Agreement and the Agreement and Power of Attorney has been duly
authorized, executed and delivered by or on behalf of Weis, is a valid and
binding agreement of Weis and, except for the indemnification and contribution
provisions of the Agreement, the Agreement and the Agreement and Power of
Attorney are enforceable against Weis in accordance with the terms thereof.
No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Shares by or on behalf of Weis, in connection with the execution, delivery and
performance of the Agreement(1) and the Agreement and Power of Attorney by or
on behalf of Weis or in connection with the taking by or on behalf of Weis of
any action contemplated thereby or, if so required, all such consents,
approvals, authorizations and orders specifying the same have been obtained and
are in full force and effect, except such as have been obtained under the Act or
the Rules and Regulations and such as may be required under state securities or
"Blue Sky" laws or by the by-laws and rules of the NASD in connection with the
purchase and distribution by the Underwriters of the Shares to be sold by Weis.
The execution and delivery by Weis of, and the performance by Weis of the
Agreement and the Agreement and Power of Attorney, do not and will not (i)
violate the certificate of incorporation or by-laws of Weis, (ii) breach or
result in a default under, cause the time for performance of any obligation to
be accelerated under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the assets of Weis pursuant to the terms of,
(x) any indenture, mortgage, deed of trust, loan agreement, bond, debenture,
note agreement capital lease or other evidence of indebtedness of which we have
knowledge, (y) any voting trust arrangement or any contract or other agreement
to which Weis is a party that restricts the ability of Weis to issue securities
and of which we have knowledge or any other contact or other agreement of which
we have knowledge, (iii) breach or otherwise violate, any existing obligation of
Weis under any court or administrative order, judgment, or decree of which we
have knowledge or (iv) violate
-------------------
(1) All references in this opinion to the Agreement shall include the Price
Determination Agreement.
applicable provisions of any statute, or regulation in the Commonwealth of
Pennsylvania, the States of Florida or California or of the United States.
There are no transfer or similar taxes payable in connection with the sale
and delivery of the Shares by Weis to the several Underwriters, except as
specified herein.
The foregoing opinion is subject to the qualification that the
enforceability of the Agreement and the Agreement and Power of Attorney may be:
(i) subject to bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally; and (ii) subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding at law or in equity), including principles of commercial
reasonableness or conscionability and an implied covenant of good faith and fair
dealing.
This letter is furnished by us solely for your benefit in connection with
the transactions referred to in the Agreement and may not be circulated to, or
relied upon by, any other person.
EXHIBIT E
Form of Opinion
of Counsel(1) to
Xxxxxx X. Xxxxx, III
Xxxxxx X. Xxxxx, III ("Xxxxx") has full power and authority to enter into
the Agreement and the Agreement and Power of Attorney and to sell, transfer and
deliver such Shares pursuant to the Agreement and the Agreement and Power of
Attorney. All authorizations and consents necessary for the execution and
delivery of the Agreement and the Agreement and Power of Attorney on behalf of
Xxxxx have been given. The delivery of the Shares on behalf of Xxxxx pursuant to
the terms of the Agreement and payment therefore by the Underwriters will
transfer good and marketable title to such Shares to the several Underwriters
purchasing such Shares, free and clear of all liens, encumbrance and claims
whatsoever.
Each of the Agreement and the Agreement and Power of Attorney has been duly
authorized, executed and delivered by or on behalf of Xxxxx, is a valid and
binding agreement of Xxxxx and, except for the indemnification and contribution
provisions of the Agreement, the Agreement and the Agreement and Power of
Attorney are enforceable against Xxxxx in accordance with the terms thereof.
No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Shares by or on behalf of Xxxxx, in connection with the execution, delivery and
performance of the Agreement(2) and the Agreement and Power of Attorney by or
on behalf of Xxxxx or in connection with the taking by or on behalf of Xxxxx of
any action contemplated thereby or, if so required, all such consents,
approvals, authorizations and orders specifying the same have been obtained and
are in full force and effect, except such as have been obtained under the Act or
the Rules and Regulations and such as may be required under state securities or
"Blue Sky" laws or by the by-laws and rules of the NASD in connection with the
purchase and distribution by the Underwriters of the Shares to be sold by Xxxxx.
The execution and delivery by Xxxxx of, and the performance by Xxxxx of his
agreements in, the Agreement and the Agreement and Power of Attorney, do not and
will not (i) breach or result in a default under, cause the time for performance
of any obligation to be accelerated under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of Xxxxx
pursuant to the terms of, (x) any indenture, mortgage, deed of trust, loan
agreement, bond, debenture, note agreement capital lease or other evidence of
indebtedness of which we have knowledge, (y) any voting trust arrangement or any
contract or other agreement to which Xxxxx is a party that restricts the ability
of Xxxxx to issue securities and of which we have knowledge or
---------------
(1) This opinion may be provided by counsel to the Company on behalf of
Xx.Xxxxx. Every other selling shareholder must provide a certificate in
the form of Exhibit F in lieu of an opinion of counsel.
(2) All references in this opinion to the Agreement shall include the Price
Determination Agreement.
(z) any other contact or other agreement of which we have knowledge,
(ii) breach or otherwise violate, any existing obligation of Xxxxx under any
court or administrative order, judgment, or decree of which we have knowledge or
(iii) violate applicable provisions of any statute, or regulation in the
State[s] of ________________ or of the United States.
There are no transfer or similar taxes payable in connection with the sale
and delivery of the Shares by Xxxxx to the several Underwriters, except as
specified in such opinion.
The foregoing opinion is subject to the qualification that the
enforceability of the Agreement and the Agreement and Power of Attorney may be:
(i) subject to bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally; and (ii) subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding at law or in equity), including principles of commercial
reasonableness or conscionability and an implied covenant of good faith and fair
dealing.
This letter is furnished by us solely for your benefit in connection with
the transactions referred to in the Agreement and may not be circulated to, or
relied upon by, any other person.
EXHIBIT F
Form of
Certificate of the Selling Shareholders
I am the duly authorized Attorney-in-Fact of each of the Selling
Shareholders (the "Selling Shareholders") named in Schedule I to the
Underwriting Agreement (the "Underwriting Agreement"), dated [ ], 1998,
among AquaPenn Spring Water Company, Inc., each of the Selling Shareholders, and
PaineWebber Incorporated, Lazard Freres & Co. LLC and Xxxxxx/Xxxxxx
Incorporated, as representatives of the Underwriters named in Schedule II of the
Underwriting Agreement, and I do hereby certify on behalf of each of the Selling
Shareholders (other than Xxxxxx X. Xxxxx, III) as follows:
1. The representations and warranties of each of the Selling Shareholders
contained in the Underwriting Agreement and the Agreement and Power of Attorney
are true and correct in all material respects on the date hereof with the same
force and effect as if made on and as of the date hereof.
2. Each of the Selling Shareholders has complied with all of the agreements
and satisfied all of the conditions on the part of each of the Selling
Shareholders to be performed or satisfied, pursuant to the Underwriting
Agreement and the Agreement and Power of Attorney executed by the undersigned,
on or before the date hereof.
Capitalized terms used herein and not otherwise defined herein have their
respective meanings set forth in the Underwriting Agreement and the Agreement
and Power of Attorney.
IN WITNESS WHEREOF, I have signed this certificate on behalf of each of the
Selling Shareholders named in Schedule I to the Underwriting Agreement as of the
date below.
Dated: [ ], 1998
By:
-----------------------------------
Name:
Title: As Attorney-in-Fact
for each of the Selling
Shareholders named in
Schedule I to the
Underwriting Agreement.
