EXHIBIT 1.1
10,000,000
DELEK US HOLDINGS, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
_______ __, 2006
XXXXXX BROTHERS INC.
CITIGROUP GLOBAL MARKETS INC.,
As Representatives of the several
Underwriters named in Schedule 1 attached hereto,
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Delek US Holdings, Inc., a Delaware corporation (the "COMPANY"),
proposes to sell 10,000,000 shares (the "FIRM STOCK") of the Company's common
stock, par value $0.01 per share (the "COMMON STOCK"). In addition, the Company
proposes to grant to the underwriters (the "UNDERWRITERS") named in Schedule 1
attached to this agreement (this "AGREEMENT") an option to purchase up to
1,500,000 additional shares of the Common Stock on the terms set forth in
Section 2 (the "OPTION STOCK"). The Firm Stock and the Option Stock, if
purchased, are hereinafter collectively called the "STOCK." This is to confirm
the agreement concerning the purchase of the Stock from the Company by the
Underwriters.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-1 relating to the Stock has
(i) been prepared by the Company in conformity with the requirements of
the Securities Act of 1933, as amended (the "SECURITIES ACT"), and the
rules and regulations (the "RULES AND REGULATIONS") of the Securities and
Exchange Commission (the "COMMISSION") thereunder; (ii) been filed with
the Commission under the Securities Act; and (iii) become effective under
the Securities Act. Copies of such registration statement and any
amendment thereto have been delivered by the Company to you as the
representatives (the "REPRESENTATIVES") of the Underwriters. As used in
this Agreement:
(i) "APPLICABLE TIME" means [ ] [a.m.][p.m.] (New York City
time) on the date of this Agreement;
(ii) "EFFECTIVE DATE" means the date and time as of which such
registration statement[, or the most recent post-effective amendment
thereto,] was declared effective by the Commission;
2
(iii) "ISSUER FREE WRITING PROSPECTUS" means each "free
writing prospectus" (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the
Stock;
(iv) "PRELIMINARY PROSPECTUS" means any preliminary prospectus
relating to the Stock included in such registration statement or
filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations;
(v) "PRICING DISCLOSURE PACKAGE" means, as of the Applicable
Time, the most recent Preliminary Prospectus, together with each
Issuer Free Writing Prospectus filed or used by the Company on or
before the Applicable Time, other than a road show that is an Issuer
Free Writing Prospectus but is not required to be filed under Rule
433 of the Rules and Regulations;
(vi) "PROSPECTUS" means the final prospectus relating to the
Stock, as filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations; and
(vii) "REGISTRATION STATEMENT" means such registration
statement, as amended as of the Effective Date, including any
Preliminary Prospectus or the Prospectus and all exhibits to such
registration statement.
The Commission has not issued any order preventing or suspending the use
of any Preliminary Prospectus or the Prospectus or suspending the
effectiveness of the Registration Statement, and no proceeding or
examination for such purpose has been instituted or, to the Company's
knowledge, threatened by the Commission.
(b) The Company was not at the time of initial filing of the
Registration Statement and at the earliest time thereafter that the
Company or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) of the Rules and Regulations) of the Stock, is
not on the date hereof and will not be on the applicable Delivery Date (as
defined in Section 4) an "ineligible issuer" (as defined in Rule 405).
(c) The Registration Statement conformed and will conform in all
material respects on the Effective Date and on the applicable Delivery
Date, and any amendment to the Registration Statement filed after the date
hereof will conform in all material respects when filed, to the
requirements of the Securities Act and the Rules and Regulations. The
Preliminary Prospectus conformed, and the Prospectus will conform, in all
material respects when filed with the Commission pursuant to Rule 424(b)
and on the applicable Delivery Date to the requirements of the Securities
Act and the Rules and Regulations.
(d) The Registration Statement did not, as of the Effective Date,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided that no representation or warranty is
made as to information contained in or omitted from the Registration
Statement in reliance upon and in conformity with written information
3
furnished to the Company through the Representatives by or on behalf of
any Underwriter specifically for inclusion therein, which information is
specified in Section 8(e).
(e) The Prospectus will not, as of its date and on the applicable
Delivery Date, contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to information
contained in or omitted from the Prospectus in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in Section 8(e).
(f) The Pricing Disclosure Package, when considered together with
the public offering price of the Stock, number of shares of Stock and the
underwriting discount included on the cover page of the Prospectus, as of
the Applicable Time, did not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Pricing Disclosure Package in
reliance upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified in
Section 8(e).
(g) Each Issuer Free Writing Prospectus (including, without
limitation, any road show that is a free writing prospectus under Rule
433), when considered together with the public offering price of the
Stock, number of shares of Stock and the underwriting discount included on
the cover page of the Prospectus and the Pricing Disclosure Package, as of
the Applicable Time, did not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(h) Each Issuer Free Writing Prospectus conformed or will conform in
all material respects to the requirements of the Securities Act and the
Rules and Regulations on the date of first use, and the Company has
complied with all prospectus delivery and any filing requirements
applicable to such Issuer Free Writing Prospectus pursuant to the Rules
and Regulations. The Company has not made any offer relating to the Stock
that would constitute an Issuer Free Writing Prospectus without the prior
written consent of the Representatives. The Company has retained in
accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the Rules and
Regulations. The Company has taken all actions necessary so that any "road
show" (as defined in Rule 433 of the Rules and Regulations) in connection
with the offering of the Stock will not be required to be filed pursuant
to the Rules and Regulations.
(i) Each of the Company and its subsidiaries (as defined in Section
17) has been duly organized, is validly existing and, except for
subsidiaries that are partnerships,
4
in good standing as a corporation or other business entity under the laws
of its jurisdiction of organization and is duly qualified to do business
and, except for subsidiaries that are partnerships, in good standing as a
foreign corporation or other business entity in each jurisdiction in which
its ownership or lease of property or the conduct of its businesses
requires such qualification, except where the failure to be so qualified
or in good standing would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the business,
financial condition, results of operations or prospects of the Company and
its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"). Each of
the Company and its subsidiaries has all corporate, partnership or limited
liability company power and authority necessary to own or hold its
properties and to conduct the businesses in which it is engaged, except as
would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. The Company does not own or control,
directly or indirectly, any corporation, association or other entity other
than the subsidiaries listed in Exhibit 21.1 to the Registration
Statement. None of the subsidiaries of the Company other than MAPCO
Express, Inc. and Delek Refining, Inc. is a "significant subsidiary" (as
defined in Rule 405).
(j) The Company has an authorized capitalization as set forth in
each of the most recent Preliminary Prospectus and the Prospectus, and all
of the issued shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and non-assessable, conform
in all material respects to the description thereof contained in each of
the most recent Preliminary Prospectus and the Prospectus and were issued
in compliance with federal and state securities laws and not in violation
of any preemptive right, resale right, right of first refusal or similar
right. All of the Company's outstanding options, warrants and other rights
to purchase or exchange any securities for shares of the Company's capital
stock have been duly authorized and validly issued, conform in all
material respects to the description thereof contained in each of the most
recent Preliminary Prospectus and the Prospectus and were issued in
compliance with federal and state securities laws. All of the issued
shares of capital stock of each subsidiary of the Company that is a
corporation have been duly authorized and validly issued and are fully
paid and non-assessable; all of the outstanding partnership interests of
Delek Refining, Ltd. have been duly authorized and validly issued; all of
the outstanding membership interests of Delek U.S. Refining GP, LLC have
been duly authorized and validly issued; and all of the issued shares of
capital stock, partnership interests and membership interests of each
subsidiary of the Company are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims, except for
such liens, encumbrances, equities or claims (i) created under debt
agreements referred to or described in the most recent Preliminary
Prospectus and the Prospectus or filed as exhibits to the Registration
Statement, or (ii) as would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(k) The shares of the Stock to be issued and sold by the Company to
the Underwriters hereunder have been duly authorized and, upon payment and
delivery in accordance with this Agreement, will be validly issued, fully
paid and non-assessable, will conform to the description thereof contained
in each of the most recent Preliminary Prospectus and the Prospectus, will
be issued in compliance with federal and state
5
securities laws and will be free of statutory and contractual preemptive
rights, rights of first refusal and similar rights.
(l) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by
the Company.
(m) The execution, delivery and performance of this Agreement by the
Company, the consummation of the transactions contemplated hereby and the
application of the proceeds from the sale of the Stock as described under
"Use of Proceeds" in each of the most recent Preliminary Prospectus and
the Prospectus will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, impose any lien, charge or
encumbrance upon any property or assets of the Company and its
subsidiaries, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement, license or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject;
(ii) result in any violation of the provisions of the charter or by-laws
(or similar organizational documents) of the Company or any of its
subsidiaries; or (iii) result in any violation of any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets, except, in the case of clause (i) or (iii),
where such conflict, breach, violation, imposition of a lien, charge or
encumbrance or default would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(n) No consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets is required for the execution, delivery and
performance of this Agreement by the Company, the consummation of the
transactions contemplated hereby, the application of the proceeds from the
sale of the Stock as described under "Use of Proceeds" in each of the most
recent Preliminary Prospectus and the Prospectus, except for the
registration of the Stock under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), and applicable state securities laws in connection with
the purchase and sale of the Stock by the Underwriters, and such consents
as may be required by the New York Stock Exchange or the by-laws and rules
of the National Association of Securities Dealers, Inc. (the "NASD") in
connection with the purchase and distribution of the Stock by the
Underwriters.
(o) Except as identified in the most recent Preliminary Prospectus
and the Prospectus or filed as exhibits to the Registration Statement,
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 Securities 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
6
pursuant to any other registration statement filed by the Company under
the Securities Act.
(p) The Company has not sold or issued any securities that would be
integrated with the offering of the Stock contemplated by this Agreement
pursuant to the Securities Act, the Rules and Regulations or the
interpretations thereof by the Commission.
(q) (i) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included in the most recent Preliminary Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, and (ii) since such
date, there has not been any change in the capital stock or increase in
the long-term debt of the Company or any of its subsidiaries or any
adverse change, or any development involving a prospective adverse change,
in or affecting the business, financial condition, results of operations
or prospects of the Company and its subsidiaries taken as a whole, in the
case of clause (i) or (ii), except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(r) Since the date as of which information is given in the most
recent Preliminary Prospectus and except as may otherwise be described in
the most recent Preliminary Prospectus, the Company has not (i) incurred
any material liability or obligation, direct or contingent, other than
liabilities and obligations that were incurred in the ordinary course of
business, (ii) entered into any material transaction not in the ordinary
course of business or (iii) declared or paid any dividend on its capital
stock.
(s) The historical financial statements (including the related notes
and supporting schedules) of the Company and, to the Company's knowledge,
the historical financial statements (including the related notes and
supporting schedules) of the Tyler Refinery and XxXxxxxx Pipeline and
Xxxxxxxxxx Oil Co., Inc. and Subsidiaries included in the most recent
Preliminary Prospectus comply as to form in all material respects with the
applicable requirements of Regulation S-X under the Securities Act and
present fairly the financial condition, results of operations and cash
flows of the entities purported to be shown thereby at the dates and for
the periods indicated and have been prepared in conformity with accounting
principles generally accepted in the United States applied on a consistent
basis throughout the periods involved.
(t) The pro forma financial statements included in the most recent
Preliminary Prospectus include assumptions that provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions and events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma adjustments reflect the proper application of those adjustments to
the historical financial statement amounts in the pro forma financial
statements included in the most recent Preliminary Prospectus. The pro
forma financial statements included in the most recent Preliminary
Prospectus comply as to form in all material respects with the applicable
requirements of Regulation S-X under the Act.
7
(u) Ernst & Young LLP, who have audited certain financial statements
of the Company and its consolidated subsidiaries, whose report appears in
the most recent Preliminary Prospectus and who have delivered the initial
letter referred to in Section 7(g) hereof, are an independent registered
public accounting firm with respect to the Company for the fiscal years
ended December 31, 2002, 2003 and 2005 as required by the Securities Act
and the Rules and Regulations; and Xxxxx Xxxxxxx XxXxxx P.C., whose report
appears in the most recent Preliminary Prospectus and who have delivered
the initial letter referred to in Section 7(i) hereof, are an independent
registered public accounting firm with respect to the Company for the year
ended December 31, 2004 as required by the Securities Act and the Rules
and Regulations.
(v) The Company and each of its subsidiaries have good and
marketable title in fee simple to all real property used in the ordinary
course of business by the Company or its subsidiaries and good and
marketable title to all personal property owned by them, in each case free
and clear of all monetary liens (other than for real property taxes and
assessments not yet due and payable), except such as are described in the
most recent Preliminary Prospectus or such as do not materially interfere
with the use made of such property by the Company and its subsidiaries,
and all assets held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases, with such
exceptions as do not materially interfere with the use made of such assets
by the Company and its subsidiaries.
(w) The Company and each of its subsidiaries carry, or are covered
by, insurance from insurers of recognized financial responsibility in such
amounts and covering such risks as the Company and its subsidiaries
reasonably consider adequate for the conduct of their respective
businesses and the value of their respective properties. All such policies
of insurance of the Company and its subsidiaries are in full force and
effect. There are no material claims by the Company or any of its
subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights
clause. The Company and its subsidiaries reasonably believe that they will
be able to renew their existing insurance coverage as and when such
coverage expires or to obtain replacement coverage adequate for the
conduct of their respective businesses at a cost that would not reasonably
be expected to have a Material Adverse Effect.
(x) The statistical and market-related data included under the
captions "Prospectus Summary," "Management's Discussion and Analysis of
Financial Condition and Results of Operations," "Our Industry" and
"Business" in the most recent Preliminary Prospectus are based on or
derived from sources that the Company believes to be reliable and accurate
in all material respects.
(y) Neither the Company nor any subsidiary is, and as of the
applicable Delivery Date and, after giving effect to the offer and sale of
the Stock and the application of the net proceeds therefrom as described
under "Use of Proceeds" in the most recent Preliminary Prospectus and the
Prospectus, none of them will be, (i) an "investment company" within the
meaning of such term under the Investment Company Act of 1940, as amended
(the "INVESTMENT COMPANY ACT"), and the rules and
8
regulations of the Commission thereunder or (ii) a "business development
company" (as defined in Section 2(a)(48) of the Investment Company Act).
(z) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject that
would, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect or would, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the
performance of this Agreement by the Company or the consummation of the
transactions contemplated hereby by the Company; and to the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or others.
(aa) There are no legal or governmental proceedings or contracts or
other documents of a character required to be described in the
Registration Statement or the most recent Preliminary Prospectus or, in
the case of documents, to be filed as exhibits to the Registration
Statement, that are not described and filed as required. Neither the
Company nor any of its subsidiaries has knowledge that any other party to
any such contract, agreement or arrangement has any intention not to
perform in all material respects as contemplated by the terms thereof; and
that statements made in the most recent Preliminary Prospectus under the
caption "Business - Government Regulation and Environmental Matters"
insofar as they describe the terms of statutes, rules or regulations,
legal or governmental proceedings or contracts and other documents,
accurately describe the terms of such statutes, rules and regulations,
legal and governmental proceedings and contracts and other documents in
all material respects.
(bb) Except as described in the most recent Preliminary Prospectus,
no relationship, direct or indirect, exists between or among the Company,
on the one hand, and the directors, officers, stockholders, customers or
suppliers of the Company, on the other hand, that is required to be
described in the most recent Preliminary Prospectus or the Prospectus
which is not so described.
(cc) No labor disturbance by the employees of the Company or its
subsidiaries exists or, to the knowledge of the Company, is imminent that
would reasonably be expected to have a Material Adverse Effect.
(dd) (i) Each "employee benefit plan" (within the meaning of Section
3(3) of the Employee Retirement Security Act of 1974, as amended
("ERISA")) for which the Company or any member of its "Controlled Group"
(defined as any organization which is a member of a controlled group of
corporations within the meaning of Section 414 of the Internal Revenue
Code of 1986, as amended (the "CODE")) would have any liability (each a
"PLAN") has been maintained in all material respects in compliance with
its terms and with the requirements of all applicable statutes, rules and
regulations including ERISA and the Code; (ii) with respect to each Plan
subject to Title IV of ERISA (a) no "reportable event" (within the meaning
of Section 4043(c) of ERISA) has occurred or is reasonably expected to
occur, (b) no "accumulated funding deficiency" (within the meaning of
Section 302 of ERISA or Section 412 of the Code), whether or not waived,
has occurred or is reasonably expected to occur, (c) the fair market value
of the assets
9
under each Plan exceeds the present value of all benefits accrued under
such Plan (determined based on those assumptions used to fund such Plan)
and (d) neither the Company or any member of its Controlled Group has
incurred, or reasonably expects to incur, any liability under Title IV of
ERISA (other than contributions to the Plan or premiums to the PBGC in the
ordinary course and without default) in respect of a Plan (including a
"multiemployer plan", within the meaning of Section 4001(c)(3) of ERISA);
and (iii) each Plan that is intended to be qualified under Section 401(a)
of the Code has received a favorable determination or opinion letter from
the Internal Revenue Service that it is so qualified and nothing has
occurred, whether by action or by failure to act, which would cause the
loss of such qualification.
(ee) (i) The Company and each of its subsidiaries have filed all
federal, state, local and foreign income and franchise tax returns
required to be filed through the date hereof, subject to permitted
extensions, and have paid all taxes due thereon, and (ii) no tax
deficiency has been determined adversely to the Company or any of its
subsidiaries which is currently outstanding, except, in the case of clause
(i) or (ii), as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(ff) There are no transfer taxes or other similar fees or charges
under Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery
of this Agreement or the issuance by the Company or sale by the Company of
the Stock.
(gg) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws (or similar organizational documents),
(ii) is in default, and no event has occurred that, with notice or lapse
of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, license or other
agreement or instrument to which it is a party or by which it is bound or
to which any of its properties or assets is subject or (iii) is in
violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over it or its property or
assets or has failed to obtain any license, permit, certificate, franchise
or other governmental authorization or permit necessary to the ownership
of its property or to the conduct of its business, except in the case of
clauses (ii) and (iii), to the extent any such conflict, breach, violation
or default would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(hh) The Company and each of its subsidiaries (i) maintain records
that in reasonable detail accurately and fairly reflect transactions and
dispositions of assets and (ii) maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (A) transactions
are executed in accordance with management's general or specific
authorizations, (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (C) access to
assets is permitted only in accordance with management's general or
specific authorization and (D) the recorded accountability for
10
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any material differences.
(ii) Except as disclosed in the most recent Preliminary Prospectus,
since the date of the most recent balance sheet of the Company and its
consolidated subsidiaries reviewed or audited by Ernst & Young LLP, the
Company has not been advised of (A) any significant deficiencies in the
design or operation of internal controls that would reasonably be expected
to adversely affect the ability of the Company and each of its
subsidiaries to record, process, summarize and report financial data, or
any material weaknesses in internal controls and (B) any fraud, whether or
not material, that involves management or other employees who have a
significant role in the internal controls of the Company and each of its
subsidiaries.
(jj) The Company and its directors or officers, in their capacities
as such, are in compliance, in all material respects, with the applicable
provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith.
(kk) The section entitled "Management's Discussion and Analysis of
Financial Condition and Results of Operations - Critical Accounting
Policies" in the most recent Preliminary Prospectus accurately and fully
describes (A) the accounting policies that the Company believes are the
most important in the portrayal of the Company's financial condition and
results of operations and that require management's most difficult,
subjective or complex judgments ("CRITICAL ACCOUNTING POLICIES"); (B) the
judgments and uncertainties affecting the application of Critical
Accounting Policies; and (C) the likelihood that materially different
amounts would be reported under different conditions or using different
assumptions and an explanation thereof.
(ll) The Company and each of its subsidiaries have such permits,
licenses, patents, franchises, certificates of need and other approvals or
authorizations of governmental or regulatory authorities ("PERMITS") as
are necessary under applicable law to own their properties and conduct
their businesses in the manner described in the most recent Preliminary
Prospectus, except for any of the foregoing that would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect or except as described in the most recent Preliminary Prospectus;
each of the Company and its subsidiaries has fulfilled and performed all
of its material obligations with respect to the Permits, and no event has
occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other impairment of
the rights of the holder or any such Permits, except for any of the
foregoing that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect or except as described in the
most recent Preliminary Prospectus.
(mm) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service
xxxx registrations, copyrights, licenses, know-how, software, systems and
technology (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their respective businesses, and,
to the Company's knowledge, the
11
conduct of their respective businesses will not conflict with, and the
Company and its subsidiaries have not received any notice of any claim of
conflict with, any such rights of others, except for any of the foregoing
that would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.
(nn) The Company and each of its subsidiaries (i) are, and at all
times prior hereto were, in compliance with all applicable laws,
regulations, ordinances, rules, orders, judgments, decrees, permits or
other legal requirements of any governmental authority, including without
limitation any national, state, regional, or local authority, relating to
the protection of human health or safety, the environment, or natural
resources, or to hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS") applicable to such entity, which
compliance includes, without limitation, obtaining, maintaining and
complying with all permits and authorizations and approvals required by
Environmental Laws to conduct their respective businesses, and (ii) have
not received notice of any actual or alleged violation of Environmental
Laws, or of any potential liability for or other obligation concerning the
presence, disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except in the case of clause (i) or (ii) where
such non-compliance, violation, liability, or other obligation would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect or has been described in the most recent
Preliminary Prospectus. Except as described in the most recent Preliminary
Prospectus, (A) there are no proceedings that are pending, or, to the
knowledge of the Company, contemplated, against the Company or any of its
subsidiaries under Environmental Laws in which a governmental authority is
also a party, other than such proceedings regarding which it is reasonably
believed no monetary sanctions of $100,000 or more will be imposed, and
(B) the Company and its subsidiaries have not received written notice of
any threatened action, claim or notice of non-compliance or violation,
investigation or proceeding with respect to Environmental Laws, or
liabilities or other obligations under Environmental Laws or concerning
hazardous or toxic substances or wastes, pollutants or contaminants, that
would reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(oo) Neither the Company nor any subsidiary is in violation of or
has received notice of any violation with respect to any federal or state
law relating to discrimination in the hiring, promotion or pay of
employees, nor any applicable federal or state wage and hour laws, nor any
state law precluding the denial of credit due to the neighborhood in which
a property is situated, except for those violations that would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Affect.
(pp) Except as described in or contemplated by the most recent
Preliminary Prospectus, no subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on such subsidiary's capital
stock, from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such subsidiary's
property or assets to the Company or any other subsidiary of the Company.
12
(qq) Neither the Company nor any of its subsidiaries, nor, to the
knowledge of the Company, any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or any of its
subsidiaries, has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate
funds; (iii) violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(rr) The operations of the Company and its subsidiaries are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the
"MONEY LAUNDERING LAWS") and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company,
threatened, except, in each case, as would not reasonably be expected to
have a Material Adverse Effect.
(ss) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department ("OFAC"); and the Company will not
directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(tt) Each Preliminary Prospectus, the Prospectus and each Issuer
Free Writing Prospectus comply, and any further amendments or supplements
thereto will comply, in all material respects, with any applicable laws or
regulations of foreign jurisdictions in which such Preliminary Prospectus,
Prospectus or such Issuer Free Writing Prospectus, as amended or
supplemented, if applicable, are distributed in connection with the
Directed Share Program described in Section 3. No consent, approval,
authorization or order of, or filing or registration with, any court or
governmental agency or body, other than such as have been obtained, is
required under the securities laws and regulations of any foreign
jurisdiction in which the Directed Shares are offered or sold outside the
United States.
(uu) The Company has not offered, or caused Xxxxxx Brothers Inc. to
offer, Stock to any person pursuant to the Directed Share Program with the
specific intent to unlawfully influence (i) a customer or supplier of the
Company to alter the customer's or supplier's level or type of business
with the Company or (ii) a trade journalist or
13
publication to write or publish favorable information about the Company,
its business or its products.
(vv) The Company has not distributed and, prior to the later to
occur of any Delivery Date and completion of the distribution of the
Stock, will not distribute any offering material in connection with the
offering and sale of the Stock other than any Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus to which the
Representatives have consented in accordance with Section 1(h) or 5(a)(vi)
and any Issuer Free Writing Prospectus set forth on Schedule 3 hereto and,
in connection with the Directed Share Program described in Section 3, the
enrollment materials prepared by Xxxxxx Brothers Inc.
(ww) The Company has not taken and will not take, directly or
indirectly, any action designed to or that has constituted or that would
reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the shares of the Stock.
(xx) The Stock has been approved for listing, subject to official
notice of issuance and evidence of satisfactory distribution, on the New
York Stock Exchange.
Any certificate signed by any two officers of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Stock shall be deemed a representation and warranty by
the Company, as to matters covered thereby, to each Underwriter.
2. Purchase of the Stock by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 10,000,000 shares of
the Firm Stock to the several Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the Firm
Stock set forth opposite that Underwriter's name in Schedule 1 hereto. The
respective purchase obligations of the Underwriters with respect to the Firm
Stock shall be rounded among the Underwriters to avoid fractional shares, as the
Representatives may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to 1,500,000 additional shares of Option Stock. Such option is
exercisable in the event that the Underwriters sell more shares of Common Stock
than the number of shares of Firm Stock in the offering and as set forth in
Section 4 hereof. Each Underwriter agrees, severally and not jointly, to
purchase the number of shares of Option Stock (subject to such adjustments to
eliminate fractional shares as the Representatives may determine) that bears the
same proportion to the total number of shares of Option Stock to be sold on such
Delivery Date as the number of shares of Firm Stock set forth in Schedule 1
hereto opposite the name of such Underwriter bears to the total number of shares
of Firm Stock.
The price of both the Firm Stock and any Option Stock purchased by
the Underwriters shall be $- per share.
14
The Company shall not be obligated to deliver any of the Firm Stock
or Option Stock to be delivered on the applicable Delivery Date, except upon
payment for all such Stock to be purchased on such Delivery Date as provided
herein.
3. Offering of Stock by the Underwriters. Upon authorization by the
Representatives of the release of the Firm Stock, the several Underwriters
propose to offer the Firm Stock for sale upon the terms and conditions to be set
forth in the Prospectus.
It is understood that approximately 500,000 shares of the Firm Stock
(the "DIRECTED SHARES") will initially be reserved by the several Underwriters
for offer and sale upon the terms and conditions to be set forth in the
Prospectus and in accordance with the rules and regulations of the NASD to
employees of the Company and its subsidiaries and persons having business
relationships with the Company and its subsidiaries who have heretofore
delivered to Xxxxxx Brothers Inc. indications of interest to purchase shares of
Firm Stock in form satisfactory to Xxxxxx Brothers Inc. (such program, the
"DIRECTED SHARE PROGRAM") and that any allocation of such Firm Stock among such
persons will be made in accordance with timely directions received by Xxxxxx
Brothers Inc. from the Company; provided that under no circumstances will Xxxxxx
Brothers Inc. or any Underwriter be liable to the Company or to any such person
for any action taken or omitted in good faith in connection with such Directed
Share Program. It is further understood that any Directed Shares not
affirmatively reconfirmed for purchase by any participant in the Directed Share
Program by 10:00 A.M., New York City time, on the date hereof or otherwise not
purchased by such persons will be offered by the Underwriters to the public upon
the terms and conditions set forth in the Prospectus.
The Company agrees to pay all reasonable fees and disbursements
incurred by the Underwriters in connection with the Directed Share Program and
any stamp duties or other taxes incurred by the Underwriters in connection with
the Directed Share Program.
4. Delivery of and Payment for the Stock. Delivery of and payment
for the Firm Stock shall be made at 10:00 A.M., New York City time, on the third
full business day following the date of this Agreement or at such other date or
place as shall be determined by agreement between the Representatives and the
Company. This date and time are sometimes referred to as the "INITIAL DELIVERY
DATE." Delivery of the Firm Stock shall be made to the Representatives for the
account of each Underwriter against payment by the several Underwriters through
the Representatives and of the respective aggregate purchase prices of the Firm
Stock being sold by the Company to or upon the order of the Company of the
purchase price by wire transfer in immediately available funds to the accounts
specified by the Company. Time shall be of the essence, and delivery at the time
and place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. The Company shall deliver the Firm
Stock through the facilities of The Depository Trust Company ("DTC") unless the
Representatives shall otherwise instruct.
The option granted in Section 2 will expire 30 days after the date
of this Agreement and may be exercised in whole or from time to time in part by
written notice being given to the Company by the Representatives; provided that
if such date falls on a day that is not a business day, the option granted in
Section 2 will expire on the next succeeding business day. Such notice shall set
forth the aggregate number of shares of Option Stock as to which the option
15
is being exercised, the names in which the shares of Option Stock are to be
registered, the denominations in which the shares of Option Stock are to be
issued and the date and time, as determined by the Representatives, when the
shares of Option Stock are to be delivered; provided, however, that this date
and time shall not be earlier than the Initial Delivery Date nor earlier than
the second business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on which the
option shall have been exercised. Each date and time the shares of Option Stock
are delivered is sometimes referred to as an "OPTION STOCK DELIVERY DATE," and
the Initial Delivery Date and any Option Stock Delivery Date are sometimes each
referred to as a "DELIVERY DATE."
Delivery of the Option Stock by the Company and payment for the
Option Stock by the several Underwriters through the Representatives shall be
made at 10:00 A.M., New York City time, on the date specified in the
corresponding notice described in the preceding paragraph or at such other date
or place as shall be determined by agreement between the Representatives and the
Company. On the Option Stock Delivery Date, the Company shall deliver or cause
to be delivered the Option Stock to the Representatives for the account of each
Underwriter against payment by the several Underwriters through the
Representatives and of the respective aggregate purchase prices of the Option
Stock being sold by the Company to or upon the order of the Company of the
purchase price by wire transfer in immediately available funds to the accounts
specified by the Company. Time shall be of the essence, and delivery at the time
and place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. The Company shall deliver the Option
Stock through the facilities of DTC unless the Representatives shall otherwise
instruct.
5. Further Agreements of the Company and the Underwriters. (a) The
Company agrees:
(i) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on
the second business day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the
Registration Statement or the Prospectus prior to the last Delivery Date
except as provided herein; to advise the Representatives, promptly after
it receives notice thereof, of the time when any amendment or supplement
to the Registration Statement or the Prospectus has been filed and to
furnish the Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of the Prospectus or any Issuer Free Writing
Prospectus, of the suspension of the qualification of the Stock for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding or examination for any such purpose or of any request by
the Commission for the amending or supplementing of the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of the Prospectus
or any Issuer Free Writing Prospectus or suspending any such
qualification, to use promptly its reasonable best efforts to obtain its
withdrawal;
16
(ii) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a signed copy of the Registration Statement
as originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed therewith;
(iii) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (A)
conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement and the computation of per share earnings), (B)
each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus and (C) each Issuer Free Writing Prospectus; and,
if the delivery of a prospectus is required at any time after the date
hereof in connection with the offering or sale of the Stock or any other
securities relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary to amend or supplement the Prospectus in order to
comply with the Securities Act, to notify the Representatives and, upon
their request, to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies
as the Representatives may from time to time reasonably request of an
amended or supplemented Prospectus that will correct such statement or
omission or effect such compliance;
(iv) To file promptly with the Commission any amendment or
supplement to the Registration Statement or the Prospectus that may, in
the judgment of the Company or the Representatives, be required by the
Securities Act or requested by the Commission;
(v) Prior to filing with the Commission any amendment or supplement
to the Registration Statement or the Prospectus, to furnish a copy thereof
to the Representatives and counsel for the Underwriters and obtain the
consent of the Representatives to the filing;
(vi) Not to make any offer relating to the Stock that would
constitute an Issuer Free Writing Prospectus without the prior written
consent of the Representatives;
(vii) To retain in accordance with the Rules and Regulations all
Issuer Free Writing Prospectuses not required to be filed pursuant to the
Rules and Regulations; and if at any time after the date hereof any events
shall have occurred as a result of which any Issuer Free Writing
Prospectus, as then amended or supplemented, would conflict with the
information in the Registration Statement, the most recent Preliminary
Prospectus or the Prospectus or would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or, if for any other reason it shall be
necessary to amend or supplement any Issuer Free Writing Prospectus, to
notify the Representatives and, upon their request, to file such document
and to prepare and furnish without charge to each Underwriter as many
copies as the Representatives may
17
from time to time reasonably request of an amended or supplemented Issuer
Free Writing Prospectus that will correct such conflict, statement or
omission or effect such compliance;
(viii)As soon as practicable after the Effective Date (it being
understood that the Company shall have until at least 410 or, if the
fourth quarter following the fiscal quarter that includes the Effective
Date is the last fiscal quarter of the Company's fiscal year, 455 days
after the end of the Company's current fiscal quarter), to make generally
available to the Company's security holders and to deliver to the
Representatives an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities
Act and the Rules and Regulations (including, at the option of the
Company, Rule 158);
(ix) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for offering
and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Stock;
provided that in connection therewith the Company shall not be required to
(i) qualify as a foreign corporation in any jurisdiction in which it would
not otherwise be required to so qualify, (ii) file a general consent to
service of process in any such jurisdiction or (iii) subject itself to
taxation in any jurisdiction in which it would not otherwise be subject;
(x) For a period commencing on the date hereof and ending on the
180th day after the date of the Prospectus (the "LOCK-UP PERIOD"), not to,
directly or indirectly, (1) offer for sale, sell, pledge or otherwise
dispose of (or enter into any transaction or device that is designed to,
or could be expected to, result in the disposition by any person at any
time in the future of) any shares of Common Stock or securities
convertible into or exchangeable for Common Stock (other than (i) the
Stock and shares issued pursuant to employee benefit plans, qualified
stock option plans or other employee compensation plans existing on the
date hereof or pursuant to currently outstanding options, warrants or
rights, or (ii) Common Stock, shares, options, warrants or other
securities convertible into or exchangeable for Common Stock issued as
consideration in bona fide merger or acquisition transactions and which
represent in the aggregate no more than __% of the Company's outstanding
Common Stock), or sell or grant options, rights or warrants with respect
to any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than the grant of options pursuant to
option plans existing on the date hereof or contemplated to be adopted as
disclosed in the most recent Preliminary Prospectus), (2) enter into any
swap or other derivatives transaction that transfers to another, in whole
or in part, any of the economic benefits or risks of ownership of such
shares of Common Stock, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise, (3) file or cause to be filed a
registration statement, including any amendments, with respect to the
registration of any shares of Common Stock or securities convertible,
exercisable or exchangeable into Common Stock or any other securities of
the Company (other than any registration statement on Form S-8) or (4)
publicly disclose the intention to do any of the foregoing, in each case
without the prior written consent of
18
Xxxxxx Brothers Inc. and Citigroup Global Markets Inc., on behalf of the
Underwriters, and to cause each officer, key employee, director and
stockholder of the Company or other person set forth on Schedule 2 hereto
to furnish to the Representatives, prior to the Initial Delivery Date, a
letter or letters, substantially in the form of Exhibit A hereto (the
"LOCK-UP AGREEMENTS"); notwithstanding the foregoing, if (1) during the
last 17 days of the Lock-Up Period, the Company issues an earnings release
or material news or a material event relating to the Company occurs or (2)
prior to the expiration of the Lock-Up Period, the Company announces that
it will release earnings results during the 16-day period beginning on the
last day of the Lock-Up Period, then the restrictions imposed in this
paragraph shall continue to apply until the expiration of the 18-day
period beginning on the issuance of the earnings release or the
announcement of the material news or the occurrence of the material event,
unless Xxxxxx Brothers Inc. and Citigroup Global Markets Inc., on behalf
of the Underwriters, waive such extension in writing;
(xi) To apply the net proceeds from the sale of the Stock being sold
by the Company as set forth in the Prospectus;
(xii) In connection with the Directed Share Program, to ensure that
the Directed Shares will be restricted from sale, transfer, assignment,
pledge or hypothecation to the same extent as sales and dispositions of
Common Stock by the Company are restricted pursuant to Section 5(a)(x),
and Xxxxxx Brothers Inc. will notify the Company as to which Directed
Share Participants will need to be so restricted. At the request of Xxxxxx
Brothers Inc., the Company will direct the transfer agent to place stop
transfer restrictions upon such securities for such period of time as is
consistent with Section 5(a)(x); and
(xiii)To comply with all applicable securities and other applicable
laws, rules and regulations in each foreign jurisdiction in which the
Directed Shares are offered in connection with the Directed Share Program.
(b) Each Underwriter severally agrees that such Underwriter has not,
and shall not, include any "issuer information" (as defined in Rule 433) in any
"free writing prospectus" (as defined in Rule 405) used or referred to by such
Underwriter without the prior consent of the Company (any such issuer
information with respect to whose use the Company has given its consent,
"PERMITTED ISSUER INFORMATION"); provided that (i) no such consent shall be
required with respect to any such issuer information contained in any document
filed by the Company with the Commission prior to the use of such free writing
prospectus and (ii) "issuer information," as used in this Section 5(b), shall
not be deemed to include information prepared by or on behalf of such
Underwriter on the basis of or derived from issuer information.
6. Expenses. The Company agrees, whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
to pay all costs, expenses, fees and taxes incident to and in connection with
(a) the authorization, issuance, sale and delivery of the Stock and any stamp
duties or other taxes payable in that connection, and the preparation and
printing of certificates for the Stock; (b) the preparation, printing and filing
under the Securities Act of the Registration Statement (including any exhibits
thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus and any amendment or supplement thereto; (c) the distribution of the
Registration Statement (including any exhibits
19
thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus and any amendment or supplement thereto, all as provided in this
Agreement; (d) any required review by the NASD of the terms of sale of the Stock
(including related reasonable and documented fees and expenses of counsel to the
Underwriters); (e) the listing of the Stock on the New York Stock Exchange
and/or any other exchange; (f) the qualification of the Stock under the
securities laws of the several jurisdictions as provided in Section 5(a)(ix) and
the preparation, printing and distribution of a Blue Sky Memorandum (including
related reasonable and documented fees and expenses of counsel to the
Underwriters); (g) the offer and sale of shares of the Stock by the Underwriters
in connection with the Directed Share Program, including the reasonable and
documented fees and disbursements of counsel to the Underwriters related
thereto, reasonable and documented costs and expenses of preparation, printing
and distribution of the Directed Share Program material and all stamp duties or
other taxes incurred by the Underwriters in connection with the Directed Share
Program; (h) the investor presentations on any "road show" undertaken in
connection with the marketing of the Stock, including, without limitation,
reasonable expenses associated with any electronic roadshow, reasonable travel
and lodging expenses of the representatives and officers of the Company and
fifty percent (50%) of the cost of any aircraft chartered in connection with the
road show (the remaining fifty percent (50%) of such cost to be collectively
borne by the Underwriters); and (i) all other costs and expenses incident to the
performance of the obligations of the Company under this Agreement; provided
that, except as provided in this Section 6 and in Section 11, the Underwriters
shall pay their own costs and expenses, including the costs and expenses of
their counsel, any transfer taxes on the Stock which they may sell and the
expenses of advertising any offering of the Stock made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 5(a)(i); the Company shall have complied with
all filing requirements applicable to any Issuer Free Writing Prospectus
used or referred to after the date hereof; no stop order suspending the
effectiveness of the Registration Statement or preventing or suspending
the use of the Prospectus or any Issuer Free Writing Prospectus shall have
been issued and no proceeding or examination for such purpose shall have
been initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Delivery Date that the Registration Statement,
the Prospectus or the Pricing Disclosure Package, or any amendment or
supplement thereto, contains an untrue statement of a fact which, in the
opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters,
is material or omits to state a fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
20
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Stock, the
Registration Statement, the Prospectus and any Issuer Free Writing
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Company shall
have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Fulbright & Xxxxxxxx L.L.P. shall have furnished to the
Representatives its written opinion, as counsel to the Company, addressed
to the Underwriters and dated such Delivery Date, in form and substance
reasonably satisfactory to the Representatives, substantially in the form
attached hereto as Exhibit B-1.
(e) Xxxx X. Xxxxxx shall have furnished to the Representatives his
written opinion, as General Counsel and Secretary of the Company,
addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representatives, substantially in
the form attached hereto as Exhibit B-2.
(f) The Representatives shall have received from Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions,
dated such Delivery Date, with respect to the issuance and sale of the
Stock, the Registration Statement, the Prospectus and the Pricing
Disclosure Package and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(g) At the time of execution of this Agreement, the Representatives
shall have received from Ernst & Young LLP a letter, in form and substance
satisfactory to the Representatives, addressed to the Underwriters and
dated the date hereof (i) confirming that they are an independent
registered public accounting firm with respect to the Company for the
fiscal years ended December 31, 2002, 2003 and 2005 within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission, and (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the most
recent Preliminary Prospectus, as of a date not more than three days prior
to the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily covered
by accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(h) With respect to the letter of Ernst & Young LLP referred to in
the preceding paragraph and delivered to the Representatives concurrently
with the execution of this Agreement (the "E&Y INITIAL LETTER"), the
Company shall have furnished to the Representatives a letter (the "E&Y
BRING-DOWN LETTER") of such accountants, addressed to the Underwriters and
dated such Delivery Date (i) confirming that they are an independent
registered public accounting firm with respect to the Company for the
fiscal
21
years ended December 31, 2002, 2003 and 2005 within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission, (ii) stating, as of the date of the E&Y bring-down
letter (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than three days prior to
the date of the E&Y bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters
covered by the E&Y initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the E&Y initial letter.
(i) At the time of execution of this Agreement, the Representatives
shall have received from Xxxxx Xxxxxxx XxXxxx P.C. a letter, in form and
substance satisfactory to the Representatives, addressed to the
Underwriters and dated the date hereof (i) confirming that they are an
independent registered public accounting firm with respect to the Company
for fiscal year ended December 31, 2004 within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission, and (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the most
recent Preliminary Prospectus, as of a date not more than three days prior
to the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily covered
by accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(j) With respect to the letter of Xxxxx Xxxxxxx XxXxxx P.C. referred
to in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "MHM INITIAL
LETTER"), the Company shall have furnished to the Representatives a letter
(the "MHM BRING-DOWN LETTER") of such accountants, addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are an
independent registered public accounting firm with respect to the Company
for the fiscal year ended December 31, 2004 within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission, (ii) stating, as of the date of the MHM bring-down
letter (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than three days prior to
the date of the MHM bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters
covered by the MHM initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the MHM initial letter.
(k) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its Chief Executive Officer and
its principal financial officer stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct on and as of such Delivery
Date, and the Company
22
has complied with all its agreements contained herein and satisfied
all the conditions on its part to be performed or satisfied
hereunder at or prior to such Delivery Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued; and no proceedings or
examination for that purpose have been instituted or, to the
knowledge of such officers, threatened; and
(iii) They have carefully examined the Registration Statement,
the Prospectus and the Pricing Disclosure Package, and, in their
opinion, (A) (1) the Registration Statement, as of the Effective
Date, (2) the Prospectus, as of its date and on the applicable
Delivery Date, or (3) the Pricing Disclosure Package, when
considered together with the public offering price of the Stock,
number of shares of Stock and the underwriting discount included on
the cover page of the Prospectus, as of the Applicable Time, did not
and do not contain any untrue statement of a material fact and did
not and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (except in the
case of the Registration Statement, in the light of the
circumstances under which they were made) not misleading, and (B)
since the Effective Date, no event has occurred that should have
been set forth in a supplement or amendment to the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus that
has not been so set forth.
(l) (i) Neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements
included in the most recent Preliminary Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree or (ii) except as
described in the most recent Preliminary Prospectus, since such date there
shall not have been any change in the capital stock or increase in the
long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the
business, financial condition, results of operations or prospects of the
Company and its subsidiaries taken as a whole, the effect of which, in any
such case described in clause (i) or (ii), is, in the reasonable judgment
of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Stock being delivered on such Delivery Date on the terms
and in the manner contemplated in the Prospectus.
(m) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have been
suspended or materially limited or the settlement of such trading
generally shall have been materially disrupted or minimum prices shall
have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by federal or state authorities, (iii) the
00
Xxxxxx Xxxxxx shall have become engaged in hostilities, there shall have
been an escalation in hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions, including, without
limitation, as a result of terrorist activities after the date hereof (or
the effect of international conditions on the financial markets in the
United States shall be such), as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the public
offering or delivery of the Stock being delivered on such Delivery Date on
the terms and in the manner contemplated in the Prospectus.
(n) The New York Stock Exchange shall have approved the Stock for
listing, subject only to official notice of issuance and evidence of
satisfactory distribution.
(o) The Lock-Up Agreements between the Representatives and the
officers, key employees, directors and stockholders of the Company or
other persons set forth on Schedule 2, delivered to the Representatives on
or before the date of this Agreement, shall be in full force and effect on
such Delivery Date.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter,
its directors, officers and employees and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the
Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Stock), to which that Underwriter, director,
officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in (A)
any Preliminary Prospectus, the Registration Statement, the Prospectus or
in any amendment or supplement thereto, (B) any Issuer Free Writing
Prospectus or in any amendment or supplement thereto or (C) any Permitted
Issuer Information used or referred to in any "free writing prospectus"
(as defined in Rule 405) used or referred to by any Underwriter, (D) any
"road show" (as defined in Rule 433) not constituting an Issuer Free
Writing Prospectus (a "NON-PROSPECTUS ROAD SHOW") or (E) any Blue Sky
application or other document prepared or executed by the Company (or
based upon any written information furnished by the Company for use
therein) specifically for the purpose of qualifying any or all of the
Stock under the securities laws of any state or other jurisdiction (any
such application, document or information being hereinafter called a "BLUE
SKY APPLICATION"), (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any
Issuer Free Writing Prospectus or in any amendment or supplement thereto
or in any Permitted Issuer Information, any Non-Prospectus Road Show or
any Blue Sky Application, any material fact required to be stated therein
or
24
necessary to make the statements therein not misleading or (iii) any act
or failure to act or any alleged act or failure to act by any Underwriter
in connection with, or relating in any manner to, the Stock or the
offering contemplated hereby, and which is included as part of or referred
to in any loss, claim, damage, liability or action arising out of or based
upon matters covered by clause (i) or (ii) above (provided that the
Company shall not be liable under this clause (iii) to the extent that it
is determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly from
any such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful misconduct), and shall
reimburse each Underwriter and each such director, officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter, director, officer, employee or
controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus, any Issuer Free Writing Prospectus or in any such
amendment or supplement thereto or in any Permitted Issuer Information,
any Non-Prospectus Road Show or any Blue Sky Application, in reliance upon
and in conformity with written information concerning such Underwriter
furnished to the Company through the Representatives by or on behalf of
any Underwriter specifically for inclusion therein, which information
consists solely of the information specified in Section 8(e). The
foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any director, officer,
employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its directors (including any person who, with
his or her consent, is named in the Registration Statement as about to
become a director of the Company), officers and employees, and each person
who controls the Company within the meaning of Section 15 of the
Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company
or any such director, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or
supplement thereto or in any Non-Prospectus Road Show or Blue Sky
Application, or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any
Issuer Free Writing Prospectus or in any amendment or supplement thereto
or in any Non-Prospectus Road Show or Blue Sky Application, any material
fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through
the Representatives by or on behalf of that Underwriter specifically for
inclusion therein,
25
which information is limited to the information set forth in Section 8(e),
and shall reimburse the Company, its directors, officers, employees or
controlling persons promptly upon demand for any legal or other expenses
reasonably incurred by the Company or such director, officer, employee or
controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity agreement is
in addition to any liability that any Underwriter may otherwise have to
the Company or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 8 except to the extent it has been materially prejudiced by such
failure and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 8. If any
such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified
party under this Section 8 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation; provided, however, that the
Representatives shall have the right to employ counsel to represent
jointly the Representatives and those other Underwriters and their
respective directors, officers, employees and controlling persons who may
be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company under this
Section 8 if (i) the Company and the Underwriters shall have so mutually
agreed; (ii) the Company has failed within a reasonable time to retain
counsel reasonably satisfactory to the Underwriters; (iii) the
Underwriters and their respective directors, officers, employees and
controlling persons shall have reasonably concluded that there may be
legal defenses available to them that are different from or in addition to
those available to the Company; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Underwriters
or their respective directors, officers, employees or controlling persons,
on the one hand, and the Company, on the other hand, and representation of
both sets of parties by the same counsel would be inappropriate due to
actual or potential differing interests between them, and in any such
event the fees and expenses of such separate counsel shall be paid by the
Company; it being understood, however, that the Company shall not be
liable for the expenses of more than one separate counsel (in addition to
any local counsel) incurred by the indemnified parties in any one
proceeding or series of related proceedings. No indemnifying party shall
(i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to
26
any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding and does not include any
findings of fact or admissions of fault or culpability as to the
indemnified party, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment for the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a), 8(b) or 8(f) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company, on the one hand,
and the Underwriters, on the other, from the offering of the Stock or (ii)
if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the
relative fault of the Company, on the one hand, and the Underwriters, on
the other, with respect to the statements or omissions that resulted in
such loss, claim, damage or liability, or action in respect thereof, as
well as any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Underwriters, on the
other, with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock
purchased under this Agreement (before deducting expenses) received by the
Company, as set forth in the table on the cover page of the Prospectus, on
the one hand, and the total underwriting discounts and commissions
received by the Underwriters with respect to the shares of the Stock
purchased under this Agreement, as set forth in the table on the cover
page of the Prospectus, on the other hand. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters,
the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that
does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of
the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 8(d), no Underwriter shall be required to contribute any amount in
excess
27
of the amount by which the net proceeds from the sale of the Stock
underwritten by it exceeds the amount of any damages that such Underwriter
has otherwise paid or become liable to pay by reason of any 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 Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 8(d) are several in
proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company acknowledges
and agrees that the statements regarding delivery of shares by the
Underwriters set forth on the cover page of, and the concession figure and
the paragraphs relating to stabilization, short positions and penalty
bids, electronic distribution and discretionary sales by the Underwriters
appearing under the caption "Underwriting" in, the most recent Preliminary
Prospectus and the Prospectus are correct and constitute the only
information concerning such Underwriters furnished in writing to the
Company by or on behalf of the Underwriters specifically for inclusion in
any Preliminary Prospectus, the Registration Statement, the Prospectus,
any Issuer Free Writing Prospectus or in any amendment or supplement
thereto or in any Non-Prospectus Road Show.
(f) The Company shall indemnify and hold harmless Xxxxxx Brothers
Inc. (including its directors, officers and employees) and each person, if
any, who controls Xxxxxx Brothers Inc. within the meaning of Section 15 of
the Securities Act ("XXXXXX BROTHERS ENTITIES"), from and against any
loss, claim, damage or liability or any action in respect thereof to which
any of the Xxxxxx Brothers Entities may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action (i) arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
material prepared by or with the approval of the Company for distribution
to Directed Share Participants in connection with the Directed Share
Program or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) arises out of, or is based upon, the failure
of the Directed Share Participant to pay for and accept delivery of
Directed Shares that the Directed Share Participant agreed to purchase or
(iii) is otherwise related to the Directed Share Program; provided that
the Company shall not be liable under this clause (iii) for any loss,
claim, damage, liability or action that is determined in a final judgment
by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Xxxxxx Brothers Entities. The
Company shall reimburse the Xxxxxx Brothers Entities promptly upon demand
for any legal or other expenses reasonably incurred by them in connection
with investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are incurred.
9. Defaulting Underwriters. If, on any Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
Stock that the defaulting Underwriter agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of shares of the
Firm Stock set forth opposite the name of each remaining non-defaulting
28
Underwriter in Schedule 1 hereto bears to the total number of shares of the Firm
Stock set forth opposite the names of all the remaining non-defaulting
Underwriters in Schedule 1 hereto; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the Stock
on such Delivery Date if the total number of shares of the Stock that the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of shares of the Stock to be purchased on
such Delivery Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the number of shares of the Stock that
it agreed to purchase on such Delivery Date pursuant to the terms of Section 2.
If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Stock to be purchased
on such Delivery Date. If the remaining Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase the shares that the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
Delivery Date, this Agreement (or, with respect to any Option Stock Delivery
Date, the obligation of the Underwriters to purchase, and of the Company to
sell, the Option Stock) shall terminate without liability on the part of any
non-defaulting Underwriter or the Company, except that the Company will continue
to be liable for the payment of expenses to the extent set forth in Sections 6
and 11. As used in this Agreement, the term "Underwriter" includes, for all
purposes of this Agreement unless the context requires otherwise, any party not
listed in Schedule 1 hereto that, pursuant to this Section 9, purchases Stock
that a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company for damages caused by its default. If
other Underwriters are obligated or agree to purchase the Stock of a defaulting
or withdrawing Underwriter, either the Representatives or the Company may
postpone the Delivery Date for up to seven full business days in order to effect
any changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, the Prospectus or
in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may
be terminated by the Representatives by notice given to and received by the
Company prior to delivery of and payment for the Firm Stock if, prior to that
time, any of the events described in Sections 7(l) and 7(m) shall have occurred
or if the Underwriters shall decline to purchase the Stock for any reason
permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If (a) the Company
shall fail to tender the Stock for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition to the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled for any reason or (b) the Underwriters shall decline to purchase
the Stock for any reason permitted under this Agreement (other than as permitted
under Section 7(m)), the Company will reimburse the Underwriters for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of counsel) incurred by the Underwriters in connection with this Agreement and
the proposed purchase of the Stock, and upon demand the Company shall pay the
full amount thereof to the Representatives. If this Agreement is terminated
pursuant to Section 9 by reason of the default of one or more Underwriters, the
29
Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
12. Research Analyst Independence. The Company acknowledges that the
Underwriters' research analysts and research departments are required to be
independent from their respective investment banking divisions and are subject
to certain regulations and internal policies, and that such Underwriters'
research analysts may hold views and make statements or investment
recommendations and/or publish research reports with respect to the Company
and/or the offering that differ from the views of their respective investment
banking divisions. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against the Underwriters
with respect to any conflict of interest that may arise from the fact that the
views expressed by their independent research analysts and research departments
may be different from or inconsistent with the views or advice communicated to
the Company by such Underwriters' investment banking divisions. The Company
acknowledges that each of the Underwriters is a full service securities firm and
as such from time to time, subject to applicable securities laws, may effect
transactions for its own account or the account of its customers and hold long
or short positions in debt or equity securities of the companies that may be the
subject of the transactions contemplated by this Agreement.
13. No Fiduciary Duty. The Company acknowledges and agrees that in
connection with this offering, sale of the Stock or any other services the
Underwriters may be deemed to be providing hereunder, notwithstanding any
preexisting relationship, advisory or otherwise, between the parties or any oral
representations or assurances previously or subsequently made by the
Underwriters: (i) no fiduciary or agency relationship between the Company and
any other person, on the one hand, and the Underwriters, on the other, exists;
(ii) the Underwriters are not acting as advisors, expert or otherwise, to the
Company, including, without limitation, with respect to the determination of the
public offering price of the Stock, and such relationship between the Company,
on the one hand, and the Underwriters, on the other, is entirely and solely
commercial, based on arms-length negotiations; (iii) any duties and obligations
that the Underwriters may have to the Company shall be limited to those duties
and obligations specifically stated herein; and (iv) the Underwriters and their
respective affiliates may have interests that differ from those of the Company.
The Company hereby waives any claims that the Company may have against the
Underwriters with respect to any breach of fiduciary duty in connection with
this offering.
14. Notices, Etc. All statements, demands, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail
or facsimile transmission to Xxxxxx Brothers Inc., 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Registration
(Fax: 000-000-0000), with a copy, in the case of any notice pursuant
to Section 8(c), to the Director of Litigation, Office of the
General Counsel, Xxxxxx Brothers Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (Fax: 000-000-0000); and
30
(b) if to the Company, shall be delivered or sent by mail or
facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: General Counsel (Fax:
000-000-0000).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriters by Xxxxxx Brothers Inc. on behalf of the Representatives.
15. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the directors,
officers and employees of the Underwriters and each person or persons, if any,
who control any Underwriter within the meaning of Section 15 of the Securities
Act and (B) the indemnity agreement of the Underwriters contained in Section
8(b) of this Agreement shall be deemed to be for the benefit of the directors of
the Company, the officers of the Company who have signed the Registration
Statement and any person controlling the Company within the meaning of Section
15 of the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
15, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
16. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Stock and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
17. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "BUSINESS DAY" means each Monday, Tuesday,
Wednesday, Thursday or Friday that is not a day on which banking institutions in
New York are generally authorized or obligated by law or executive order to
close and (b) "SUBSIDIARY" has the meaning set forth in Rule 405.
18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
19. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
31
If the foregoing correctly sets forth the agreement between the Company
and the Underwriters, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
DELEK US HOLDINGS, INC.
By:
------------------------
Name:
Title:
By:
------------------------
Name:
Title:
32
Accepted:
XXXXXX BROTHERS INC.
CITIGROUP GLOBAL MARKETS INC.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By XXXXXX BROTHERS INC.
By:
---------------------
Authorized Representative
By CITIGROUP GLOBAL MARKETS INC.
By:
---------------------
Authorized Representative
SCHEDULE 1
Number of Shares
Underwriters of Firm Stock
------------ -------------
Xxxxxx Brothers Inc. ....................................
Citigroup Global Markets Inc. ...........................
Credit Suisse Securities (USA) LLC.......................
HSBC Securities (USA) Inc. ..............................
Xxxxxx Xxxxxx & Company, Inc. ...........................
Xxxxxxx Xxxxx & Company, L.L.C. .........................
SunTrust Capital Markets, Inc............................
IDB Capital Corp., an affiliate of the Israel Discount
Bank of New York .....................................
----------
Total................................................. 10,000,000
==========
SCHEDULE 2
PERSONS DELIVERING LOCK-UP AGREEMENTS
Directors
Ezra Uzi Xxxxx
Xxxxxxx Last
Asaf Xxxxxxxx
Xxxxx Xxx-Xxx
Xxx Xxxxxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Officers and Key Employees
Ezra Uzi Yemin
Xxxxxxx Xxxxxxx
Xxxxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxx XxXxxxx
Assi Xxxxxxxx
Xxxx Xxxxxx
Xxxx Xxxxxxx Xx.
Xxxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxx Xxxxxx
Xxxx Xxxxx
Stockholders and Other Persons
Delek Group Ltd.
Delek Petroleum Ltd.
Delek Hungary Holding Ltd.
SCHEDULE 3
ISSUER FREE WRITING PROSPECTUSES
EXHIBIT A
LOCK-UP LETTER AGREEMENT
XXXXXX BROTHERS INC.
CITIGROUP GLOBAL MARKETS INC.
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that you and certain other firms (the
"UNDERWRITERS") propose to enter into an
Underwriting Agreement (the
"
UNDERWRITING AGREEMENT") providing for the purchase by the Underwriters of
shares (the "STOCK") of Common Stock, par value $0.01 per share (the "COMMON
STOCK"), of
Delek US Holdings, Inc., a Delaware corporation (the "COMPANY"), and
that the Underwriters propose to reoffer the Stock to the public (the
"OFFERING").
In consideration of the execution of the
Underwriting Agreement by
the Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of Xxxxxx
Brothers Inc. and Citigroup Global Markets Inc., on behalf of the Underwriters,
the undersigned will not, directly or indirectly, (1) offer for sale, sell,
pledge, or otherwise dispose of (or enter into any transaction or device that is
designed to, or could be expected to, result in the disposition by any person at
any time in the future of) any shares of Common Stock (including, without
limitation, shares of Common Stock that may be deemed to be beneficially owned
by the undersigned in accordance with the rules and regulations of the
Securities and Exchange Commission and shares of Common Stock that may be issued
upon exercise of any options or warrants) or securities convertible into or
exercisable or exchangeable for Common Stock, (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of shares of Common Stock, whether
any such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or other securities, in cash or otherwise, (3) make any
demand for or exercise any right or cause to be filed a registration statement,
including any amendments thereto, with respect to the registration of any shares
of Common Stock or securities convertible into or exercisable or exchangeable
for Common Stock or any other securities of the Company or (4) publicly disclose
the intention to do any of the foregoing, for a period commencing on the date
hereof and ending on the 180th day after the date of the Prospectus relating to
the Offering (such 180-day period, the "LOCK-UP PERIOD").
Notwithstanding the foregoing, if (1) during the last 17 days of the
Lock-Up Period, the Company issues an earnings release or material news or a
material event relating to the Company occurs or (2) prior to the expiration of
the Lock-Up Period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the Lock-Up Period, then the restrictions imposed
by this Lock-Up Letter Agreement shall continue to apply until the expiration of
the 18-day period beginning on the issuance of the earnings release or the
announcement of the material news or the occurrence of the material event,
unless waive such extension in writing. The undersigned hereby further agrees
that, prior to engaging in any transaction or taking any other action that is
subject to the terms of this Lock-Up Letter Agreement during the period from the
date of this Lock-Up Letter Agreement to and including the 34th day following
the expiration of the Lock-Up Period, it will give notice thereof to the Company
and will not consummate such transaction or take any such action unless it has
received written confirmation from the Company that the Lock-Up Period (as such
may have been extended pursuant to this paragraph) has expired. The foregoing
sentence shall not apply to bona fide gifts, sales or other dispositions of
shares of any class of the Company's capital stock, in each case that are made
exclusively between and among the undersigned or members of the undersigned's
family, or affiliates of the undersigned, including its partners (if a
partnership) or members (if a limited liability company); provided that it shall
be a condition to any such transfer that (i) the transferee/donee agrees to be
bound by the terms of the lock-up letter agreement (including, without
limitation, the restrictions set forth in the preceding sentence) to the same
extent as if the transferee/donee were a party hereto, (ii) no filing by any
party (donor, donee, transferor or transferee) under the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT"), shall be required or shall be
voluntarily made in connection with such transfer or distribution (other than a
filing on a Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after
the expiration of the 180-day period referred to above), (iii) each party
(donor, donee, transferor or transferee) shall not be required by law (including
without limitation the disclosure requirements of the Securities Act of 1933, as
amended, and the Exchange Act) to make, and shall agree to not voluntarily make,
any public announcement of the transfer or disposition, and (iv) the undersigned
notifies Xxxxxx Brothers Inc. and Citigroup Global Markets Inc. at least two
business days prior to the proposed transfer or disposition.
In furtherance of the foregoing, the Company and its transfer agent
are hereby authorized to decline to make any transfer of securities if such
transfer would constitute a violation or breach of this Lock-Up Letter
Agreement.
It is understood that, (1) if the closing of the Offering has not
occurred prior to __________, 2006, (2) if the Company notifies the Underwriters
that it does not intend to proceed with the Offering, (3) if the
Underwriting
Agreement does not become effective, or (4) if the
Underwriting Agreement (other
than the provisions thereof which survive termination) shall terminate or be
terminated prior to payment for and delivery of the Stock, the undersigned will
be released from its obligations under this Lock-Up Letter Agreement.
The undersigned understands that the Company and the Underwriters
will proceed with the Offering in reliance on this Lock-Up Letter Agreement.
2
Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will only be made pursuant to
an
Underwriting Agreement, the terms of which are subject to negotiation between
the Company and the Underwriters.
[Signature page follows]
3
The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into this Lock-Up Letter Agreement and
that, upon request, the undersigned will execute any additional documents
necessary in connection with the enforcement hereof. Any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
Very truly yours,
By:
---------------------------
Name:
Title:
Dated:
----------------
4
EXHIBIT B-1
FORM OF OPINION OF ISSUER'S COUNSEL
Capitalized terms used herein without definition shall have the
meanings ascribed to them in the
Underwriting Agreement.
(i) Each of (A) the Company and (B) MAPCO Express, Inc., Delek
Refining, Inc., MAPCO Fleet, Inc. and Delek Finance, Inc. (collectively, the
"Delaware Corporate Subsidiaries") has been duly incorporated and is validly
existing and in good standing as a corporation in its jurisdiction of
incorporation. Each of Delek Pipeline Texas, Inc., MPC Pipeline Acquisition,
Inc., Delek Land Texas, Inc. and MPC Land Acquisition, Inc. (collectively, the
"Texas Corporate Subsidiaries") has been duly incorporated and is validly
existing and in good standing as a corporation in its jurisdiction of
incorporation. Delek Refining, Ltd. ("DRL") has been duly formed and is validly
existing as a limited partnership in its jurisdiction of formation. Delek U.S.
Refining GP, LLC ("DELEK LLC") has been duly formed and is validly existing and
in good standing as a limited liability company in its jurisdiction of
formation. Each of Xxxxxxxxxx Oil Co., Inc., Gasoline Associated Services, Inc.
and Liberty Wholesale Co., Inc. is validly existing and in good standing as a
corporation in its jurisdiction of incorporation. Each of the Company, the
Delaware Corporate Subsidiaries, the Texas Corporate Subsidiaries, DRL and Delek
LLC is duly registered or qualified to do business as a foreign corporation,
partnership or limited liability company under the laws of the jurisdictions set
forth under its name on Schedule A hereto, and each of the Company, the Delaware
Corporate Subsidiaries, the Texas Corporate Subsidiaries and Delek LLC is in
good standing as a foreign corporation or limited liability company under the
laws of the jurisdictions set forth under its name on Schedule A hereto. Each of
the Company, the Delaware Corporate Subsidiaries and the Texas Corporate
Subsidiaries has all necessary corporate power and authority, DRL has all
necessary partnership power and authority, and Delek LLC has all limited
liability company power and authority, necessary to own or hold its properties
and conduct its business to be conducted on the date hereof, in each case in all
material respects as described in the Registration Statement and the Prospectus.
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued and outstanding shares of capital stock of
the Company have been duly authorized and validly issued, are fully paid and
non-assessable, conform in all material respects to the description thereof
contained in the Prospectus and were issued in compliance with applicable
federal securities laws and not in violation of any preemptive right, resale
right, right of first refusal or similar right of any securityholder of the
Company under federal or New York law, the Delaware General Corporation Law, the
Company's charter or by-laws or any agreement or other instrument to which the
Company is a party filed as an exhibit to the Registration Statement. The share
purchase rights of Ezra Uzi Yemin have been duly authorized and conform in all
material respects to the description thereof contained in the Prospectus under
the caption "Management - Employment Agreement with President and Chief
Executive Officer." All of (i) the issued shares of capital stock of each of the
Delaware Corporate Subsidiaries have been duly authorized and validly issued,
are fully paid, non-assessable and are owned of record, and to our knowledge,
beneficially, directly or indirectly by
B-1-1
the Company; (ii) the issued shares of capital stock of each of the Texas
Corporate Subsidiaries have been duly authorized and validly issued, are fully
paid, non-assessable and are owned of record, and to our knowledge,
beneficially, directly or indirectly by the Company; (iii) the partnership
interests in DRL have been duly authorized and validly issued, and are owned of
record, and to our knowledge, beneficially, directly or indirectly by the
Company; (iv) the membership interests in Delek LLC have been duly authorized
and validly issued, and are owned of record, and to our knowledge, beneficially,
directly or indirectly by the Company; in the case of clauses (i), (ii), (iii)
and (iv), to our knowledge, free and clear of all liens, encumbrances, equities
or claims except for such liens, encumbrances, equities or claims under debt
agreements described or referred to in the Prospectus or filed as exhibits to
the Registration Statement or otherwise known to us, after inquiry of the
Company but without any other independent investigation, and except for
restrictions on transferability arising under the Securities Act and applicable
state securities laws; in the case of clause (iii), to our knowledge, except for
restrictions on transferability contained in the Agreement of Limited
Partnership Agreement, dated as of February 24, 2005, of DRL, as described in
the Prospectus or created or arising under the Texas Revised Limited Partnership
Act; and in the case of clause (iv), to our knowledge, except for restrictions
on transferability described in the Prospectus or created or arising under the
Texas Limited Liability Company Act.
(iii) The sale and issuance of the shares of Stock to be issued and
sold by the Company to the Underwriters under the Agreement have been duly
authorized and, upon issuance and delivery by the Company against payment of the
consideration set forth in the Agreement, such shares of Stock will be validly
issued, fully paid and non-assessable and will conform in all material respects
to the description thereof contained in the Prospectus.
(iv) There are no preemptive rights under federal or New York law or
under the Delaware General Corporation Law to subscribe for or purchase shares
of the Stock. There are no preemptive or other rights of any securityholder of
the Company pursuant to the Company's charter or by laws or any agreement or
other instrument filed as an exhibit to the Registration Statement, except as
described in the Prospectus, to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any shares of the Stock.
(v) The Agreement has been duly and validly authorized, executed and
delivered by the Company.
(vi) Such counsel has been advised orally by the Commission that the
Registration Statement was declared effective under the Securities Act on the
date and time specified in such opinion, and the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified therein. To such
counsel's knowledge, based solely on an oral confirmation by a member of the
Commission's staff, as of the date hereof, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for such purpose has been instituted or threatened by the Commission.
(vii) (A) The Registration Statement, on the Effective Date and on
the applicable Delivery Date, and (B) the Prospectus, when filed with the
Commission pursuant to Rule 424(b) (without reference to Rule 424(b)(8)) and on
the applicable Delivery Date, appear,
B-1-2
on their face, to comply as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations, except that in
each case such counsel need express no opinion with respect to the financial
statements and notes and schedules thereto or other financial and accounting
data contained in or omitted from the Registration Statement or the Prospectus,
and such counsel shall not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in such documents, except
to the extent set forth in paragraphs (viii), (ix) and (x) below.
(viii) The statements made in the Prospectus under the caption
"Description of Capital Stock," insofar as they purport to constitute summaries
of the terms of the Common Stock (including the Stock), constitute accurate
summaries of the terms of such Common Stock in all material respects.
(ix) The statements made in the Prospectus under the caption
"Business - Government Regulation and Environmental Matters," insofar as they
refer to statements of law, accurately describe, in all material respects, the
portions of the federal Clean Air Act, the federal Clean Water Act of 1972, the
federal Resource Conservation and Recovery Act, the U.S. Environmental
Protection Agency's Fuels and Fuel Additive Regulations, and the federal
Comprehensive Environmental Response, Compensation and Liability Act, each as in
effect on the date hereof, addressed thereby.
(x) The statements made in the Prospectus under the caption
"Material United States Federal Income Tax Considerations to Non-U.S. Holders,"
insofar as they refer to statements of law, accurately describe, in all material
respects, the portions of the United States federal income tax laws addressed
thereby.
In rendering such opinion, such counsel may [(i)] state that its
opinion is limited to matters governed by the federal laws of the United States
of America, the laws of the State of New York, the Delaware General Corporation
Law, the Texas Business Corporation Act, the Texas Business Organizations Code,
the Texas Revised Limited Partnership Act, the Texas Limited Liability Company
Act and that such counsel is not admitted in the State of Delaware [and (ii)
rely (to the extent such counsel deems proper and specifies in its opinion), as
to matters involving the application of [insert description of any laws covered
by supporting opinion] upon the opinion of other counsel of good standing;
provided that such other counsel is satisfactory to counsel for the Underwriters
and furnishes a copy of its opinion to the Representatives].
Such counsel shall also have furnished to the Representatives a
written statement, addressed to the Underwriters and dated such Delivery Date,
in form and substance satisfactory to the Representatives, to the effect that
(x) such counsel has acted as counsel to the Company in connection with the
preparation of the Registration Statement, the Prospectus and the Issuer Free
Writing Prospectuses set forth on a schedule to such opinion acceptable to
counsel for the Underwriters, and (y) based on the foregoing (relying in respect
of the determination of materiality to an extent such counsel deems appropriate
upon discussions with officers and other representatives of the Company), no
facts have come to the attention of such counsel which lead such counsel to
believe that:
B-1-3
(a) the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading;
(b) the Prospectus, as of its date and as of such Delivery Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; or
(c) the most recent Preliminary Prospectus, together with the Issuer
Free Writing Prospectuses set forth on a schedule to such opinion
acceptable to counsel to the Underwriters, when considered together with
the public offering price of the Stock, number of shares of Stock and the
underwriting discount included on the cover page of the Prospectus, as of
the Applicable Time, 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[, provided, however, that any statement contained in any of the
foregoing documents shall be deemed to be modified or superseded to the
extent that any information contained in any subsequent document modifies
or replaces such statement],
except that in each case such counsel need express no belief with respect to (i)
the financial statements and notes and schedules thereto or other financial and
accounting data contained in or omitted from the Registration Statement, the
Prospectus or the most recent Preliminary Prospectus, or (ii) the exhibits to
the Registration Statement. The foregoing statement may be qualified by a
statement to the effect that such counsel does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the most recent Preliminary
Prospectus, except to the extent set forth in paragraphs (viii), (ix) and (x)
above.
X-0-0
XXXXXXX X-0
FORM OF OPINION OF ISSUER'S GENERAL COUNSEL
Capitalized terms used herein without definition shall have the
meanings ascribed to them in the
Underwriting Agreement.
(i) The execution, delivery and performance of the Agreement by the
Company, the consummation of the transactions contemplated by the Agreement by
the Company and the application of the net proceeds from the sale of the Stock
by the Company as described under "Use of Proceeds" in the Prospectus do not and
will not (a) conflict with or result in a breach or violation of any of the
terms or provisions of, impose any lien, charge or encumbrance upon any property
or assets of the Company and its subsidiaries, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement, license or other
agreement or instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject; (b) result in any violation of the provisions of the
charter or by-laws (or similar organizational documents) of the Company or any
of its subsidiaries; or (c) result in any violation of any statute or any rule
or regulation, or any order known to such counsel issued by any federal or
Tennessee state court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties or assets,
except, in the case of clause (a) or (c) above, where such conflict, breach,
violation, imposition of a lien, charge or encumbrance or default would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(ii) Except for the registration of the Stock under the Securities
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable state or
foreign securities laws in connection with the purchase and sale of the Stock by
the Underwriters, and such consents as may be required by the New York Stock
Exchange or the by-laws and rules of the National Association of Securities
Dealers, Inc. in connection with the purchase and distribution of the Stock by
the Underwriters, to the knowledge of such counsel, no consent, approval,
authorization or order of, or filing or registration with, any federal or
Tennessee state court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties or assets is
required for the execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby.
(iii) Except as identified in the most recent Preliminary Prospectus
and the Prospectus or filed as exhibits to the Registration Statement, to such
counsel's knowledge, there are no contracts or agreements between the Company
and any person granting such person the right to require the Company to file a
registration statement under the Securities 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 Securities Act.
B-2-1
(iv) To such counsel's knowledge, and except as described in the
Prospectus, there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property or assets
of the Company or any of its subsidiaries is the subject that would,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect or would, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the performance of the Agreement
by the Company or the consummation of the transactions contemplated thereby by
the Company; and, to such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or others.
(v) To such counsel's knowledge, there are no contracts or other
documents required to be described in the Registration Statement or Prospectus
or to be filed as exhibits to the Registration Statement that are not described
and filed therewith as required.
In rendering such opinion, such counsel may [(i)] state that his
opinion is limited to matters governed by the federal laws of the United States
of America, the laws of the State of Tennessee and the Delaware General
Corporation Law and that such counsel is not admitted in the State of Delaware
[and (ii) rely (to the extent such counsel deems proper and specifies in its
opinion), as to matters involving the application of [insert description of any
laws covered by supporting opinion] upon the opinion of other counsel of good
standing; provided that such other counsel is satisfactory to counsel for the
Underwriters and furnishes a copy of its opinion to the Representatives].
Such counsel shall also have furnished to the Representatives a
written statement, addressed to the Underwriters and dated such Delivery Date,
in form and substance satisfactory to the Representatives, to the effect that no
facts have come to the attention of such counsel which lead such counsel to
believe that:
(a) the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading;
(b) the Prospectus, as of its date and as of such Delivery Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; or
(c) the most recent Preliminary Prospectus, together with the Issuer
Free Writing Prospectuses set forth on a schedule to such opinion
acceptable to counsel to the Underwriters, when considered together with
the public offering price of the Stock, number of shares of Stock and the
underwriting discount included on the cover page of the Prospectus, as of
the Applicable Time, 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[; provided, however, that any statement contained in any of the
foregoing documents shall be deemed to be modified or superseded to the
extent that any information contained in any subsequent document modifies
or replaces such statement],
B-2-2
except that in each case such counsel need express no belief with respect to (i)
the financial statements and the notes and schedules thereto or other financial
and accounting data contained in or omitted from the Registration Statement, the
Prospectus or the most recent Preliminary Prospectus, or (ii) the exhibits to
the Registration Statement. The foregoing statement may be qualified by a
statement to the effect that such counsel does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the most recent Preliminary
Prospectus.
B-2-3
