EXHIBIT 1.1
[Draft as of June 23, 2002)
7,700,000 SHARES
BIG 5 SPORTING GOODS CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
June __, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
U.S. BANCORP XXXXX XXXXXXX INC.
XXXXXXXXX & COMPANY, INC.
XXXXXXXX INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000
Dear Ladies and Gentlemen:
1. Introductory. Big 5 Sporting Goods Corporation, a Delaware
corporation (the "COMPANY"), proposes to issue and sell 6,113,343 shares of its
Common Stock, par value $0.01 per share ("SECURITIES"), and the stockholders
listed in Schedule A hereto (the "SELLING STOCKHOLDERS") propose severally to
sell an aggregate of 1,586,657 outstanding shares of the Securities (such
7,700,000 shares of Securities being hereinafter referred to as the "FIRM
SECURITIES"). The Company also proposes to issue and sell to the Underwriters
(as defined herein), at the option of the Underwriters, an aggregate of not more
than 649,078 additional shares of its Securities, and the Selling Stockholders
also propose to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 505,922 additional outstanding shares of the
Company's Securities, (such 1,155,000 additional shares being hereinafter
referred to as the "OPTIONAL SECURITIES"). The Firm Securities and the Optional
Securities are herein collectively called the "OFFERED SECURITIES". The Company
and the Selling Stockholders hereby agree with the several Underwriters named in
Schedule B hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders:
(a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-68094) relating to
the Offered Securities, including a form of prospectus, has been
filed with the Securities and Exchange Commission ("COMMISSION")
and either (A) has been declared effective under the Securities
Act of 1933, as amended ("ACT") and is not proposed to be amended
or (B) is proposed to be amended by amendment or post-effective
amendment. If such
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registration statement ("INITIAL REGISTRATION STATEMENT") has
been declared effective, either (A) an additional registration
statement ("ADDITIONAL REGISTRATION STATEMENT") relating to the
Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) ("RULE 462(B)") under the Act and, if so
filed, has become effective upon filing pursuant to such Rule and
the Offered Securities all have been duly registered under the
Act pursuant to the initial registration statement and, if
applicable, the additional registration statement or (B) such an
additional registration statement is proposed to be filed with
the Commission pursuant to Rule 462(b) and will become effective
upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the
Act pursuant to the initial registration statement and such
additional registration statement. If the Company does not
propose to amend the initial registration statement or if an
additional registration statement has been filed and the Company
does not propose to amend it, and if any post-effective amendment
to either such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement,
the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c) ("RULE
462(C)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this
Agreement, "EFFECTIVE TIME" with respect to the initial
registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement
means (A) if the Company has advised the Representatives that it
does not propose to amend such registration statement, the date
and time as of which such registration statement, or the most
recent post-effective amendment thereto (if any) filed prior to
the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date
and time as of which such registration statement, as amended by
such amendment or post-effective amendment, as the case may be,
is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution
and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "EFFECTIVE TIME"
with respect to such additional registration statement means the
date and time as of which such registration statement is filed
and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE"
with respect to the initial registration statement or the
additional registration statement (if any) means the date of the
Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all information
contained in the additional registration statement (if any) and
deemed to be a part of the initial registration statement as of
the Effective Time of the additional registration statement
pursuant to the General Instructions of the Form on which it is
filed and including all information (if any) deemed to be a part
of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("RULE 430A(B)") under the Act, is
hereinafter referred to as the "INITIAL REGISTRATION STATEMENT".
The additional registration statement, as amended at its
Effective Time, including the contents of the initial
registration statement incorporated by reference therein and
including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time
pursuant to Rule 430A(b), is hereinafter
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referred to as the "ADDITIONAL REGISTRATION STATEMENT". The
Initial Registration Statement and the Additional Registration
Statement are herein referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("RULE 424(B)") under the Act or (if
no such filing is required) as included in a Registration
Statement, is hereinafter referred to as the "PROSPECTUS". No
document has been or will be prepared or distributed in reliance
on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this
Agreement: (A) on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement conformed in all
respects to the requirements of the Act and the rules and
regulations of the Commission ("RULES AND REGULATIONS") and did
not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) on
the Effective Date of the Additional Registration Statement (if
any), each Registration Statement conformed or will conform, in
all respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit,
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (C)
on the date of this Agreement, the Initial Registration Statement
and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each conforms,
and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date
of the Additional Registration Statement in which the Prospectus
is included, each Registration Statement and the Prospectus will
conform, in all respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents includes, or
will include, any untrue statement of a material fact or omits,
or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus
will conform in all respects to the requirements of the Act and
the Rules and Regulations, neither of such documents will include
any untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading, and no Additional
Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions
from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it
being understood and agreed that the only such information is
that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus;
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and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the
condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a
whole (a "MATERIAL ADVERSE EFFECT").
(iv) Each subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and each subsidiary
of the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect; all of the
issued and outstanding capital stock of each subsidiary of the
Company has been duly authorized and validly issued and is fully
paid and nonassessable; and the capital stock of each subsidiary
owned by the Company, directly or through subsidiaries, is owned
free from liens, encumbrances and defects.
(v) The Offered Securities and all other outstanding
shares of capital stock of the Company have been duly authorized;
all outstanding shares of capital stock of the Company are, and,
when the Offered Securities have been delivered and paid for in
accordance with this Agreement on each Closing Date (as defined
below), such Offered Securities will have been, validly issued,
fully paid and nonassessable and will conform in all material
respects to the description thereof contained in the Prospectus;
the stockholders of the Company have no preemptive rights with
respect to the Securities; and except as disclosed in the
Prospectus, there are no outstanding options, warrants or other
rights to subscribe for or to purchase from the Company, any
securities or obligations convertible into, or any contracts or
commitments with or by the Company to issue or sell, shares of
the Company's capital stock or any such options, warrants,
rights, convertible securities or obligations.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and
any person that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finder's
fee or other like payment in connection with this offering, or,
to the Company's knowledge, any other arrangements, agreements,
understandings, payments or issuances with respect to the Company
or any of its officers, directors, stockholders, partners,
employees, subsidiaries or affiliates that may affect the
Underwriters' compensation as determined by the National
Association of Securities Dealers, Inc. (the "NASD").
(vii) Other than the agreements listed in Schedule C
hereto, there are no contracts, agreements or understandings
between the Company and any person granting such person the right
to require the Company to file a registration statement under the
Act with respect to any securities of the Company owned or to be
owned by such person
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or to require the Company to include such securities in the
securities registered pursuant to a Registration Statement or in
any securities being registered pursuant to any other
registration statement filed by the Company under the Act. Each
such person has waived any rights to require the Company to
include any securities in the Securities registered pursuant to a
Registration Statement.
(viii) The Offered Securities have been approved for
listing subject to notice of issuance on The NASDAQ Stock
Market's National Market.
(ix) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
this Agreement in connection with the issuance and sale of the
Offered Securities by the Company, except such as have been
obtained and made under the Act and the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT"), and such as may be
required by the NASD and under state securities laws.
(x) The execution, delivery and performance of this
Agreement and the issuance and sale of the Offered Securities
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or
any court, domestic or foreign, having jurisdiction over the
Company or any subsidiary of the Company or any of their
properties, or any agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, except for such
breaches, violations or defaults that would not result in a
Material Adverse Effect, or the charter or by-laws of the Company
or any such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered Securities to
be sold by it as contemplated by this Agreement.
(xi) This Agreement has been duly authorized, executed
and delivered by the Company.
(xii) The Amended and Restated Certificate of
Incorporation of the Company, which has been filed with the
Secretary of State of the State of Delaware, and the 8.1-for-1
stock split of the Securities (the "STOCK SPLIT") have been duly
and validly authorized by all necessary corporate action of the
Company's stockholders and board of directors.
(xiii) Except as disclosed in the Prospectus, the Company
and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in
each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with
the use made or to be made thereof by them; and except as
disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal property under valid and
enforceable leases
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with no exceptions that would materially interfere with the use
made or to be made thereof by them.
(xiv) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them and have not received any notice of
proceedings relating to the revocation or modification of any
such certificate, authority or permit that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xv) Except as disclosed in the Prospectus in the first
paragraph under the caption "Business-Legal Proceedings," no
labor dispute with the employees of the Company or any subsidiary
exists or, to the knowledge of the Company, is imminent that
would reasonably be expected to have a Material Adverse Effect.
(xvi) The Company and its subsidiaries own, possess or
can acquire on reasonable terms, adequate trademarks, trade names
and other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to
conduct the business now operated by them, or presently employed
by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(xvii) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any
statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject
to any claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a
claim.
(xviii) Except as disclosed in the Prospectus in the
first paragraph under the caption "Business-Legal Proceedings,"
there are no pending actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its
obligations under this Agreement, or which are otherwise material
in the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are, to the Company's knowledge,
threatened or contemplated.
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(xix) The financial statements included in each
Registration Statement and the Prospectus present fairly the
financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States
("GAAP") applied on a consistent basis and the schedules included
in each Registration Statement present fairly the information
required to be stated therein; and the assumptions used in
preparing the pro forma financial data included in each
Registration Statement and the Prospectus provide a reasonable
basis for presenting the significant effects directly
attributable to the transactions or events described therein, the
related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma data reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(xx) Except as disclosed in the Prospectus, since the
date of the latest audited financial statements included in the
Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse
change, in the condition (financial or other), business,
properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(xxi) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application
of the proceeds thereof as described in the Prospectus, will not
be an "investment company" as defined in the Investment Company
Act of 1940.
(xxii) All material Tax returns required to be filed by
the Company and each of its subsidiaries have been filed and all
such returns are true, complete, and correct in all material
respects. All material Taxes that are due or claimed to be due
from the Company and each of its subsidiaries have been paid
other than those (i) currently payable without penalty or
interest or (ii) being contested in good faith and by appropriate
proceedings and for which, in the case of both clauses (i) and
(ii), adequate reserves have been established on the books and
records of the Company and its subsidiaries in accordance with
GAAP. There are no proposed, material Tax assessments against the
Company or any of its subsidiaries as to which the Company has
been notified. To the Company's knowledge, the accruals and
reserves on the books and records of the Company and its
subsidiaries in respect of any material Tax liability for any
taxable period not finally determined are adequate to meet any
assessments of Tax for any such period. For purposes of this
Agreement, the term "TAX" and "TAXES" shall mean all federal,
state, local and foreign taxes, and other assessments of a
similar nature (whether imposed directly or through withholding),
including any interest, additions to tax, or penalties applicable
thereto.
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(xxiii) Neither the Company, nor any of its affiliates,
has taken, directly or indirectly, any action designed to cause
or result in, or which has constituted or which would reasonably
be expected to constitute, the stabilization or manipulation of
the price of the Securities to facilitate the sale or resale of
the Offered Securities.
(xxiv) KPMG LLP, who have certified the audited financial
statements included in each Registration Statement and the
Prospectus, are independent public auditors as required by the
Act and the Rules and Regulations. The Company and each of its
subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions
are executed in accordance with management's general or specific
authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
GAAP and to maintain accountability for assets; (C) access to
assets is permitted only in accordance with management's general
or specific authorization; and (D) the recorded accountability
for inventory assets is compared with the existing inventory
assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxv) The Company and each of its subsidiaries are
insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; none
of the Company or any of its subsidiaries (A) has received notice
from any insurer or agent of such insurer that substantial
capital improvements or other material expenditures will have to
be made in order to continue such insurance or (B) has any reason
to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers at a cost that would not
have a Material Adverse Effect.
(xxvi) The Company is in compliance in all material
respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA");
no "reportable event" (as defined in ERISA) has occurred with
respect to any "pension plan" (as defined in ERISA) for which the
Company would have any liability; the Company has not incurred
and does not expect to incur material liability under (A) Title
IV of ERISA with respect to termination of, or withdrawal from,
any "pension plan" or (B) Section 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder ("CODE"); and each "pension
plan" for which the Company and each of its subsidiaries would
have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification.
(xxvii) The letter agreement, dated June 13, 2002,
relating to the Credit Agreement (the "CREDIT AGREEMENT
AMENDMENT"), by and among Big 5 Corp. and the lenders named
therein, has been duly authorized, executed and delivered by Big
5 Corp. and is a valid and binding agreement against Big 5 Corp.,
enforceable against it in
8
accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or laws affecting creditors'
rights generally and by general principles of equity (regardless
of whether enforcement is considered in a proceeding at law or in
equity).
(b) Each Selling Stockholder severally represents and warrants
to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to
the Offered Securities to be delivered by such Selling
Stockholder on such Closing Date and full right, power and
authority to enter into this Agreement and a Power of Attorney
(the "POWER OF ATTORNEY") and Custody Agreement (the "CUSTODY
AGREEMENT") and to sell, assign, transfer and deliver the Offered
Securities to be delivered by such Selling Stockholder on such
Closing Date hereunder; upon the delivery of and payment for the
Offered Securities on each Closing Date hereunder the several
Underwriters will acquire valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on
such Closing Date; this Agreement, the Power of Attorney and the
Custody Agreement have been duly authorized, executed and
delivered; and the Power of Attorney and the Custody Agreement
are, and at all times through each Closing Date will be, valid
and binding obligations by such Selling Stockholder.
(ii) All information furnished by or on behalf of such
Selling Stockholder in writing expressly for use in the
Registration Statement and Prospectus is, and on the Effective
Date will be, true, correct, and complete in all material
respects, and does not, and on the Effective Date will not,
contain any untrue statement of a material fact or omit to state
any material fact necessary to make such information not
misleading. Such Selling Stockholder confirms as accurate the
number of Securities set forth opposite such Selling
Stockholder's name in the Prospectus under the caption "Principal
and Selling Stockholders" (both prior to and after giving effect
to the sale of Offered Securities).
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim
against such Selling Stockholder or any Underwriter for a
brokerage commission, finder's fee or other like payment in
connection with this offering.
(iv) Such Selling Stockholder has reviewed the
Registration Statement and the sale of the Offered Securities by
such Selling Stockholder pursuant hereto is not prompted by any
information concerning the Company or any of its subsidiaries
which is not set forth in the Prospectus or any supplement
thereto.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and
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each Selling Stockholder, at a purchase price of $_____ per share, that number
of Firm Securities (rounded up or down, as determined by Credit Suisse First
Boston Corporation ("CSFBC") in its discretion, in order to avoid fractions)
obtained by multiplying 6,113,343 shares of Firm Securities in the case of the
Company and the number of shares of Firm Securities set forth opposite the name
of such Selling Stockholder in Schedule A hereto, in the case of a Selling
Stockholder, in each case by a fraction the numerator of which is the number of
shares of Firm Securities set forth opposite the name of such Underwriter in
Schedule B hereto and the denominator of which is the total number of shares of
Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold by
the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under Custody Agreements made with Big 5 Sporting Goods
Corporation, as custodian ("CUSTODIAN"). Each Selling Stockholder agrees that
the shares represented by the certificates held in custody for the Selling
Stockholders under such Custody Agreements are subject to the interests of the
Underwriters hereunder, that the arrangements made by the Selling Stockholders
for such custody are to that extent irrevocable, and that the obligations of the
Selling Stockholders hereunder shall not be terminated by operation of law,
whether by the death of any individual Selling Stockholder or the occurrence of
any other event, or in the case of a trust, by the death of any trustee or
trustees or the termination of such trust. If any individual Selling Stockholder
or any such trustee or trustees should die, or if any other such event should
occur, or if any of such trusts should terminate, before the delivery of the
Offered Securities hereunder, certificates for such Offered Securities shall be
delivered by the Custodian in accordance with the terms and conditions of this
Agreement as if such death or other event or termination had not occurred,
regardless of whether or not the Custodian shall have received notice of such
death or other event or termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to CSFBC drawn to the order of
the Company in the case of 6,113,343 shares of Firm Securities and to the
Company in the case of 1,586,657 shares of Firm Securities, at the office of
Irell & Xxxxxxx LLP, 1800 Avenue of the Stars, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, at 10:00 A.M., New York time, on July __, 2002, or at such
other time not later than seven full business days thereafter as CSFBC and the
Company determine, such time being herein referred to as the "FIRST CLOSING
DATE". For purposes of Rule 15c6-1 under the Exchange Act, the First Closing
Date (if later than the otherwise applicable settlement date) shall be the
settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering. The certificates for the Firm
Securities to be delivered will be in definitive form, in such denominations and
registered in such names as CSFBC requests and will be made available for
checking and packaging at the above office of Irell & Xxxxxxx LLP at least 24
hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and the
Selling Stockholders from time to time not more than 30 days subsequent to the
date of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Company and the Selling Stockholders agree, severally and
not jointly, to sell to the Underwriters the respective numbers of shares of
Optional Securities obtained by multiplying the number of shares of Optional
Securities specified in such notice by a fraction the numerator of which is
649,078 in the case of the Company and the number of shares set forth opposite
the names of such Selling
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Stockholders in Schedule A hereto under the caption "Number of Optional
Securities to be Sold" in the case of the Selling Stockholders and the
denominator of which is the total number of Optional Securities (subject to
adjustment by CSFBC to eliminate fractions). Such Optional Securities shall be
purchased from the Company and each Selling Stockholder for the account of each
Underwriter in the same proportion as the number of shares of Firm Securities
set forth opposite such Underwriter's name bears to the total number of shares
of Firm Securities (subject to adjustment by CSFBC to eliminate fractions) and
may be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFBC to the Company and the Selling
Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company and the Custodian
will deliver the Optional Securities being purchased on each Optional Closing
Date to the Representatives for the accounts of the several Underwriters against
payment of the purchase price therefor in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to
CSFBC drawn to the order of the Company at the above office of Irell & Xxxxxxx
LLP. The certificates for the Optional Securities being purchased on each
Optional Closing Date will be in definitive form, in such denominations and
registered in such names as CSFBC requests upon reasonable notice prior to such
Optional Closing Date and will be made available for checking and packaging at
the above office of Irell & Xxxxxxx LLP at a reasonable time in advance of such
Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company agrees with the several Underwriters and the Selling Stockholders that:
(a) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement, the Company
will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFBC, subparagraph (4)) of Rule 424(b) not later than the earlier of
(i) the second business day following the execution and delivery of this
Agreement or (ii) the fifteenth business day after the Effective Date of
the Initial Registration Statement. The Company will advise CSFBC
promptly of any such filing pursuant to Rule 424(b). If the Effective
Time of the Initial Registration Statement is prior to the execution and
delivery of this Agreement and an additional registration statement is
necessary to register a portion of the Offered Securities under the Act
but the Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior to
10:00 P.M., New
11
York time, on the date of this Agreement or, if earlier, on or prior to
the time the Prospectus is printed and distributed to any Underwriter,
or will make such filing at such later date as shall have been consented
to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration statement
as filed or the related prospectus or the Initial Registration
Statement, the Additional Registration Statement (if any) or the
Prospectus and will not effect such amendment or supplementation without
CSFBC's consent, which will not be unreasonably withheld; and the
Company will also advise CSFBC promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect
of a Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent to,
nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to
its securityholders an earnings statement covering a period of at least
12 months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional
Registration Statement) which will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such Effective
Date, except that, if such fourth fiscal quarter is the last quarter of
the Company's fiscal year, "AVAILABILITY DATE" means the 90th day after
the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement (five of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so long
as a prospectus relating to the Offered Securities is required to be
delivered under the Act in connection with sales by any Underwriter or
dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC requests. The
Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other documents shall be so furnished as
12
soon as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year,
a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Exchange Act or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as CSFBC may reasonably request.
(h) For a period of 180 days after the date of this Agreement,
the Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional shares
of its Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of CSFBC, except issuances of
Securities pursuant to the warrant, dated November 13, 1997, between
Ares Leveraged Investment Fund, L.P. and the Company outstanding on the
date hereof, grants of employee stock options pursuant to the terms of
the Company's 2002 Stock Incentive Plan, issuances of Securities
pursuant to the exercise of such options and the filing with the
Commission of a registration statement on Form S-8 with respect to such
options and Securities.
(i) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company under this Agreement, for any filing fees and
other expenses (including fees and disbursements of counsel) in
connection with qualification of the Offered Securities for sale under
the laws of such jurisdictions as CSFBC designates and the printing of
memoranda relating thereto, for the filing fee incident to the review by
the NASD of the Offered Securities, for any travel expenses of the
Company's officers and employees and any other expenses of the Company
in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities, and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters. The Selling
Stockholders further agree with the several Underwriters to pay
(directly or by reimbursement) all fees and expenses incident to the
performance of their obligations under this Agreement which are not
otherwise specifically provided for herein, including but not limited to
any transfer taxes on the sale by the Selling Stockholders of Offered
Securities to the Underwriters.
(j) Each Selling Stockholder agrees to deliver to the Company, as
Custodian under the Custody Agreement, on or prior to the First Closing
Date a properly completed and executed United States Treasury Department
Form W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof). The Company agrees to file a
Form 1099 on
13
behalf of each of the Selling Stockholders in connection with the sale
of Securities by the Selling Stockholders.
(k) Each Selling Stockholder agrees, for a period of 180 days
after the date of this Agreement, not to offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any additional
shares of the Securities of the Company or securities convertible into
or exchangeable or exercisable for any shares of Securities, enter into
a transaction which would have the same effect, or enter into any swap,
hedge or other arrangement that transfers, in whole or in part, any of
the economic consequences of ownership of the Securities, whether any
such aforementioned transaction is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or publicly
disclose the intention to make any such offer, sale, pledge or
disposition, or enter into any such transaction, swap, hedge or other
arrangement, without, in each case, the prior written consent of CSFBC.
(l) With respect to each of the contracts to which the Company is
a party that restrict the ability of the Company's stockholders to offer
for sale shares of Common Stock, the Company agrees that, except with
respect to shares of Common Stock to be repurchased by the Company as
disclosed in the "Use of Proceeds" section of the Prospectus, for a
period of 180 days after the date of this Agreement, the Company will
(i) enforce such "lock-up" provisions and (ii) not grant any waiver to
or exception from or otherwise release any holder from any such
"lock-up" provisions without the prior written consent of CSFBC;
provided, however, the Company shall not be required to comply with this
clause (l) with respect to any stockholders that have delivered lockup
letters to CSFBC pursuant to Section 6(i) hereof.
(m) The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds." In addition, the Company or Big 5 Corp. will pay a
fee of no more than $875,000 to Xxxxxxx Xxxxx & Associates, L.P. in
connection with the termination of the Management Services Agreement
among the Company, Big 5 Corp. and Xxxxxxx Xxxxx & Associates, L.P.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of KPMG LLP
confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
14
(i) in their opinion the financial statements and
schedules examined by them and included in the Registration
Statements comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review
of interim financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on the
unaudited financial statements included in the Registration
Statements;
(iii) on the basis of the review referred to in clause
(ii) above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements included
in the Registration Statements do not comply as to form
in all material respects with the applicable accounting
requirements of the Act and the related published Rules
and Regulations or any material modifications should be
made to such unaudited financial statements for them to
be in conformity with GAAP;
(B) at the date of the latest available balance
sheet read by such accountants, or at a subsequent
specified date not more than three business days prior to
the date of this Agreement, there was any change in the
capital stock or any increase in short-term indebtedness
or long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any
decrease in consolidated net current assets or net
assets, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(C) for the period from the closing date of the
latest income statement included in the Prospectus to the
closing date of the latest available income statement
read by such accountants there were any decreases, as
compared with the corresponding period of the previous
year, in consolidated net revenue or net operating income
or in the total or per share amounts of consolidated
income before extraordinary items or of net income;
except in all cases set forth in clauses (B) and (C)
above for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which
are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company
15
and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to be
in agreement with such results, except as otherwise specified in
such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean
the initial registration statement as proposed to be amended by
the amendment or post-effective amendment to be filed shortly
prior to its Effective Time, (ii) if the Effective Time of the
Initial Registration Statement is prior to the execution and
delivery of this Agreement but the Effective Time of the
Additional Registration Statement is subsequent to such execution
and delivery, "REGISTRATION STATEMENTS" shall mean the Initial
Registration Statement and the additional registration statement
as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its
Effective Time, and (iii) "PROSPECTUS" shall mean the prospectus
included in the Registration Statements.
(b) If the Effective Time of the Initial Registration Statement
is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or such later date as shall have
been consented to by CSFBC. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and
delivery of this Agreement, such Effective Time shall have occurred not
later than 10:00 P.M., New York time, on the date of this Agreement or,
if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have
been consented to by CSFBC. If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, the Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of any Selling Stockholder, the Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as one enterprise which, in the judgment of a
majority in interest of the Underwriters including the Representatives,
is material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating
of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), or any public announcement that any such organization
has under surveillance or review its rating of any debt securities of
the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating);
16
(iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as
would, in the judgment of a majority in interest of the Underwriters
including the Representatives, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Offered
Securities, whether in the primary market or in respect of dealings in
the secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (v) any banking moratorium
declared by U.S. Federal or New York authorities; or (vi) any major
disruption of settlements of securities or clearance services in the
United States or (vii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of
the Underwriters including the Representatives, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated
such Closing Date, of Irell & Xxxxxxx LLP, counsel for the Company, to
the effect that:
(i) Each of the Company and Big 5 Corp. has been duly
incorporated and is an existing corporation in good standing
under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus; and each of the Company and Big 5
Corp. is duly qualified to do business as a foreign corporation
in good standing in each jurisdiction listed in a schedule to be
attached to the legal opinion;
(ii) The Company has authorized capital stock as set
forth in the Prospectus. Except as set forth in the Prospectus,
to such counsel's knowledge, there are no outstanding options,
warrants or other rights to subscribe for or to purchase, any
securities convertible into, or any contracts or commitments to
issue or sell, shares of the Company's capital stock or any such
options, warrants, rights, convertible securities or obligations;
(iii) All of the issued and outstanding capital stock of
the Company and its only subsidiary Big 5 Corp., has been duly
authorized and validly issued and is fully paid and
nonassessable; and all of the capital stock of Big 5 Corp. is
owned of record by the Company;
(iv) The Offered Securities to be sold by the Company and
delivered on such Closing Date and all other outstanding shares
of Securities have been duly authorized and validly issued, are
fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Securities
under the Delaware General Corporation Law or any contract filed
as an exhibit to the Registration Statement or, to such counsel's
knowledge,
17
any other agreement to which the Company is a party or by which
the Company is bound;
(v) Other than the agreements listed in Schedule C, there
are no contracts, agreements or understandings known to such
counsel between the Company and any person granting such person
the right to require the Company to file a registration statement
under the Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to
the Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Act;
(vi) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application
of the proceeds thereof as described in the Prospectus, will not
be an "investment company" as defined in the Investment Company
Act of 1940;
(vii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required under any law which in our experience is generally
applicable to transactions of the type contemplated by this
Agreement and the Custody Agreement for the consummation of the
transactions contemplated by this Agreement or the Custody
Agreement in connection with the issuance or sale of the Offered
Securities, except such as have been obtained and made under the
Act and the Exchange Act and such as may be required by the NASD
under state securities laws;
(viii) The execution, delivery and performance of this
Agreement or the Custody Agreement and the consummation of the
transactions herein or therein contemplated will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company or
any of their properties which in our experience is generally
applicable to transactions of the type contemplated by this
Agreement and the Custody Agreement, or any agreement or
instrument that is included as an exhibit to the Registration
Statement and to which the Company or any such subsidiary is a
party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such
subsidiary is subject, or the charter or by-laws of the Company
or any such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered Securities to
be sold by it as contemplated by this Agreement;
(ix) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in such
opinion, the Additional Registration Statement (if any) was filed
and became effective under the Act as of the date and time (if
determinable) specified in such opinion, the Prospectus either
was filed with the Commission pursuant to the subparagraph of
Rule 424(b) specified in such opinion on the date specified
therein or was included in the Initial Registration Statement or
the
18
Additional Registration Statement (as the case may be), and, to
the best of the knowledge of such counsel, no stop order
suspending the effectiveness of a Registration Statement or any
part thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act, and each Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective
or issue dates, complied as to form in all material respects with
the requirements of the Act and the Rules and Regulations;
(x) This Agreement has been duly authorized, executed and
delivered by the Company; and
(xi) The Amended and Restated Certificate of
Incorporation and the Stock Split have been duly and validly
authorized by all necessary corporate action of the Company's
stockholders and board of directors.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public or certified public accountants for
the Company and with representatives of the Underwriters at which the contents
of the Registration Statement and the Prospectus, and any supplements or
amendments thereto, and related matters were discussed and, although such
counsel is not passing upon (except for the opinions explicitly given above) and
does not assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the Prospectus (except
for the opinions explicitly given above), and any supplements or amendments
thereto, on the basis of the foregoing, nothing has come to their attention
which would lead them to believe that either the Registration Statement or any
amendments thereto, at the time the Registration Statement or such amendments
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, that the Prospectus, as of the Effective
Date, contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made when such document was so filed,
not misleading (it being understood that such counsel need express no belief as
to the financial statements or schedules or other financial or statistical data
derived therefrom, included or incorporated by reference in the Registration
Statement or the Prospectus or any amendments or supplements thereto).
(e) The Representatives shall have received an opinion, dated
such Closing Date, of Irell & Xxxxxxx LLP, counsel for the Selling
Stockholders, to the effect that:
(i) Each Selling Stockholder has full right, power and
authority to sell, assign, transfer and deliver the Offered
Securities delivered by such Selling Stockholder on such Closing
Date hereunder;
(ii) Assuming that neither the Representatives nor any
Underwriter has notice of any adverse claims with respect to
Certificate number __ registered in the name ___________ and
evidencing ___ shares of Common Stock of the Company then,
19
upon delivery to the Representative of such certificate indorsed
in blank by an effective indorsement, the Representative will
acquire such certificate (and the shares represented thereby)
free of any adverse claims under Section 8-303 of the Uniform
Commercial Code as in effect on the date hereof in the State of
California;
(iii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by any Selling Stockholder under
any law which in our experience is generally applicable to
transactions of the type contemplated by this Agreement and the
Custody Agreement for the consummation of the transactions
contemplated by the Custody Agreement or this Agreement in
connection with the sale of the Offered Securities sold by the
Selling Stockholders, except such as have been obtained and made
under the Act and such as may be required under state securities
laws;
(iv) The execution, delivery and performance of the
Custody Agreement and this Agreement and the consummation of the
transactions therein and herein contemplated will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over any Selling Stockholder or any of their
properties which in our experience is generally applicable to
transactions of the type contemplated by this Agreement and the
Custody Agreement or any agreement or instrument that is included
as an exhibit to the Registration Statement and to which any
Selling Stockholder is a party or by which any Selling
Stockholder is bound or to which any of the properties of any
Selling Stockholder is subject, or the charter or by-laws of any
Selling Stockholder which is a corporation;
(v) The Power of Attorney and related Custody Agreement
with respect to each Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder
and constitute valid and legally binding obligations of such
Selling Stockholder enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and
(vi) This Agreement has been duly authorized, executed
and delivered by each Selling Stockholder.
(f) The Representatives shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or
opinions, dated such Closing Date, with respect to the incorporation of
the Company, the validity of the Offered Securities delivered on such
Closing Date, the Registration Statements, the Prospectus and other
related matters as the Representatives may require, and the Selling
Stockholders and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(g) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the
20
Company in which such officers, to the best of their knowledge after
reasonable investigation, shall state that: the representations and
warranties of the Company in this Agreement are true and correct; the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to such
Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission; the
Additional Registration Statement (if any) satisfying the requirements
of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time the Prospectus
was printed and distributed to any Underwriter; and, subsequent to the
dates of the most recent financial statements in the Prospectus, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth in
or contemplated by the Prospectus or as described in such certificate.
(h) The Representatives shall have received a letter, dated such
Closing Date, of KPMG LLP, which meets the requirements of subsection
(a) of this Section 6, except that the specified date referred to in
such subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
(i) On or prior to the date of this Agreement, the
Representatives shall have received lockup letters from each of the
executive officers and directors of the Company who are not Selling
Stockholders and from each holder of shares of Securities or securities
convertible into or exchangeable or exercisable for any shares of
Securities of the Company who are not Selling Stockholders.
(j) Receipt by the Representatives of evidence satisfactory to
them that the Company shall have obtained the Amendment to the Credit
Agreement, filed the Amended and Restated Certificate of Incorporation
and effected the Stock Split, in each case, on terms previously
disclosed to the Representatives and for the purposes described in the
Prospectus.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person, if
any who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out
of or are based upon the omission or alleged omission to state therein a
21
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter
in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the Company by
any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as
such in subsection (c) below; and provided, further, that with respect
to any untrue statement or alleged untrue statement in or omission or
alleged omission from any preliminary prospectus the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased the Offered Securities concerned, to
the extent that a prospectus relating to such Offered Securities was
required to be delivered by such Underwriter under the Act in connection
with such purchase and any such loss, claim, damage or liability of such
Underwriter results from the fact that there was not sent or given to
such person, at or prior to the written confirmation of the sale of such
Offered Securities to such person, a copy of the Prospectus if the
Company had previously furnished copies thereof to such Underwriter, and
if the Prospectus (as so amended and supplemental) would have cured the
defect giving rise to such loss, claim, damage or liability.
(b) Each Selling Stockholder, severally and not jointly, will
indemnify and hold harmless each Underwriter, its partners, directors
and officers and each person who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that such Selling Stockholder
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with
written information furnished to the Company by an Underwriter through
the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter
consists of the information described as such in subsection (c) below;
and provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any
preliminary prospectus the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent
that a prospectus relating to such Offered Securities was required to be
delivered by such Underwriter under the Act in
22
connection with such purchase and any such loss, claim, damage or
liability of such Underwriter results from the fact that there was not
sent or given to such person, at or prior to the written confirmation of
the sale of such Offered Securities to such person, a copy of the
Prospectus if the Company had previously furnished copies thereof to
such Underwriter, and if the Prospectus (as so amended and supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability; provided, further that each Selling Stockholder shall only be
subject to such liability to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission is based upon
information provided by such Selling Stockholder or contained in a
representation or warranty given by such Selling Stockholder in this
Agreement or the Custody Agreement; and provided, further, that the
liability under this subsection of each Selling Stockholder shall be
limited to an amount equal to the aggregate gross proceeds after
underwriting commissions and discounts, but before expenses, to such
Selling Stockholder from the sale of Securities sold by such Selling
Stockholder hereunder.
(c) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person,
if any, who controls the Company within the meaning of Section 15 of the
Act, and each Selling Stockholder against any losses, claims, damages or
liabilities to which the Company or such Selling Stockholder may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company and each Selling Stockholder
in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the following information in the Prospectus
furnished on behalf of each Underwriter: the concession and reallowance
figures appearing in the fourth paragraph and the information appearing
in the sixth paragraph under the caption "Underwriting."
(d) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under subsection (a), (b) or (c) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a), (b) or (c) above. In case any such action is brought
against any indemnified party and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not
23
be liable to such indemnified party under this Section 7 for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action and (ii) does not
include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a), (b) or (c) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Company and the Selling Stockholders on the one hand and the
Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as
any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders 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 and the Selling Stockholders bear to
the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred
to in the first sentence of this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e)
to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders
under this Section 7 shall be in addition to any liability which the
Company and the Selling Stockholders may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls
24
any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 7 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed a Registration
Statement and to each person, if any, who controls the Company within
the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Selling Stockholders for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section 8. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv), (v), (vi) or (vii) of Section 6(c), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
25
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory
Group, or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at Big 5 Sporting Goods Corporation, 0000 Xxxx Xx Xxxxxxx Xxxx.,
Xx Xxxxxxx, XX 00000, Attention: Xxxx Xxxxx, Esq., or, if sent to the Selling
Stockholders or any of them, will be mailed, delivered or telegraphed and
confirmed to Xxxxxx X. Xxxxxx at Big 5 Sporting Goods Corporation, 0000 Xxxx Xx
Xxxxxxx Xxxx., Xx Xxxxxxx, XX 00000; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters. Xxxxxx X. Xxxxxx will act for
the Selling Stockholders in connection with such transactions, and any action
under or in respect of this Agreement taken by Xxxxxx X. Xxxxxx will be binding
upon all the Selling Stockholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b).
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
26
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
BIG 5 SPORTING GOODS CORPORATION
By:
------------------------------------------------
Name:
Title:
THE SELLING STOCKHOLDERS
By:
------------------------------------------------
Xxxxxx X. Xxxxxx, as Attorney-in-Fact on behalf
of the Selling Stockholders named in Schedule A hereto
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
U.S. BANCORP XXXXX XXXXXXX INC.
XXXXXXXXX & COMPANY, INC.
XXXXXXXX INC.
Acting on behalf of themselves and as the
Representatives of the several Underwriters
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
-------------------------------------
Name:
Title:
SCHEDULE A
NUMBER OF NUMBER OF
FIRM OPTIONAL
SECURITIES SECURITIES TO
SELLING STOCKHOLDER TO BE SOLD BE SOLD
---------- -------------
Xxxxxx X. Xxxxxx and Xxxxxxxx X. Xxxxxx, Trustees of the
Xxxxxx X. and Xxxxxxxx X. Xxxxxx Family Trust dated
January 11, 1991 ................................................ 366,405 97,831
Xxxxxx X. and Xxxxxxxx Xxxxxx Family Partners, L.P. ............. 545,198 145,570
Xxxxxx X. Xxxxxx and Xxxxxxxxxx X. Xxxxxx, Trustees of the
Xxxxxx X. Xxxxxx and Xxxxxxxxxx X. Xxxxxx Family Trust dated
September 13, 1990 .............................................. 291,600 113,400
Xxxxxxx X. Xxxxxx, Trustee of the Xxxxxx Living Trust dated
December 11, 1997 ............................................... 145,800 56,700
Xxxxxxx X. Xxxx ................................................. 69,984 27,216
Xxxx X. Xxxxx ................................................... 16,038 6,237
Xxxxxxx X. Xxxxxxx .............................................. 69,984 27,216
Xxxxxx X. Xxxxxxxx .............................................. 58,320 22,680
Xxxxxxx X. Xxxxxx ............................................... 23,328 9,072
--------- -------
Total ........................................................... 1,586,657 505,922
========= =======
SCHEDULE B
NUMBER OF
FIRM
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------
Credit Suisse First Boston Corporation
U.S. Bancorp Xxxxx Xxxxxxx Inc. .............
Xxxxxxxxx & Company, Inc. ...................
Xxxxxxxx Inc. ...............................
---------
Total ....................................... 7,700,000
=========
SCHEDULE C
Stock Subscription Agreement dated as of September 25, 1992 by and among Big 5
Corporation, a Delaware corporation, Green Equity Investors, L.P., a Delaware
limited partnership, and the people or entities identified on Schedule 1
attached thereto.
Stock Subscription Agreement dated as of September 25, 1992 by and between Big 5
Corporation, a Delaware corporation, and Green Equity Investors, L.P., a
Delaware limited partnership.
Management Subscription and Stockholders Agreement dated as of October 15, 1992
by and among Big 5 Corporation, a Delaware corporation, Green Equity Investors,
L.P., a Delaware limited partnership, and the people identified on Schedule 1
attached thereto.
Management Subscription and Stockholders Agreement dated as of October 15, 1992
by and among Big 5 Corporation, a Delaware corporation, Green Equity Investors,
L.P., a Delaware limited partnership, and the people identified on Schedule 1
attached thereto.
Management Subscription and Stockholders Agreement dated as of November 11, 1997
by and among Big 5 Holdings Corp., a Delaware corporation, and the people
identified on Annex A attached thereto.
Management Subscription and Stockholders Agreement dated as of November 11, 1997
by and among Big 5 Holdings Corp., a Delaware corporation, and the people
identified on Annex A attached thereto.
