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EXHIBIT 1.1
_________ SHARES
AMERICAN ITALIAN PASTA COMPANY
CLASS A COMMON STOCK, $.001 PAR VALUE
UNDERWRITING AGREEMENT
April __, 1998
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April __, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
BT Alex. Xxxxx Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxx X. Xxxx & Company
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
BT Alex. Xxxxx International
Xxxxxxx Sachs International
Xxxxxx X. Xxxx & Company
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
American Italian Pasta Company, a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters (as defined below), and
certain shareholders of the Company (the "FIRM SELLING SHAREHOLDERS") named in
Part A of Schedule I hereto propose to sell to the several Underwriters (as
defined below), an aggregate of _________ shares of Class A Common Stock, par
value $.001 per share, of the Company (the "FIRM SHARES"), of which _________
shares are to be issued and sold by the Company (the "COMPANY SHARES") and
_________ shares (the "FIRM SHAREHOLDERS SHARES") are to be sold by the Firm
Selling Shareholders.
It is understood that, subject to the conditions hereinafter stated,
_________ Firm Shares (the "U.S. FIRM SHARES"), consisting of _________ Company
Shares (the "U.S. COMPANY SHARES") and _________ Firm Shareholders Shares, will
be sold to the several U.S. Underwriters named in Schedule II hereto (the "U.S.
UNDERWRITERS") in connection with the offering and sale of such U.S. Firm Shares
in the United States and Canada to United States and Canadian Persons (as such
terms are defined in the Agreement Between U.S.
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and International Underwriters of even date herewith), and _________ Company
Shares (the "INTERNATIONAL COMPANY SHARES"), will be sold to the several
International Underwriters named in Schedule III hereto (the "INTERNATIONAL
UNDERWRITERS") in connection with the offering and sale of such International
Shares outside the United States and Canada to persons other than United States
and Canadian Persons. Xxxxxx Xxxxxxx & Co. Incorporated, Alex. Xxxxx & Sons
Incorporated, Xxxxxxx, Sachs & Co. and Xxxxxx X. Xxxx & Company shall act
as representatives (the "U.S. REPRESENTATIVES") of the several U.S.
Underwriters, and Xxxxxx Xxxxxxx & Co. International Limited, Alex. Xxxxx &
Sons Incorporated, Xxxxxxx Sachs International and Xxxxxx X. Xxxx & Company
shall act as representatives (the "INTERNATIONAL REPRESENTATIVES") of the
several International Underwriters. The U.S. Underwriters and the International
Underwriters are hereinafter collectively referred to as the "UNDERWRITERS."
Certain shareholders of the Company named in Part B of Schedule I
hereto (the "ADDITIONAL SELLING SHAREHOLDERS," and together with the Firm
Selling Shareholders, the "SELLING SHAREHOLDERS") severally propose to sell to
the several U.S. Underwriters, not more than an aggregate of _________
additional shares of Class A Common Stock, par value $.001 per share, of the
Company (the "ADDITIONAL SHARES"), each Additional Selling Shareholder selling
up to the amount set forth opposite such Additional Selling Shareholder's name
in Part B of Schedule I hereto, if and to the extent that the U.S.
Representatives shall have determined to exercise, on behalf of the U.S.
Underwriters, the right to purchase such shares of Class A Common Stock, par
value $.001 per share granted to the U.S. Underwriters in Section 3 hereof. The
Firm Shares and the Additional Shares are hereinafter collectively referred to
as the "SHARES." The shares of Class A Common Stock, par value $.001 per share,
of the Company to be outstanding after giving effect to the sales contemplated
hereby are hereinafter referred to as the "COMMON STOCK." The Company and the
Selling Shareholders are hereinafter sometimes collectively referred to as the
"SELLERS."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (File No. 333-_____) relating
to the Shares. The registration statement contains two prospectuses to be used
in connection with the offering and sale of the Shares: the U.S. prospectus, to
be used in connection with the offering and sale of Shares in the United States
and Canada to United States and Canadian Persons, and the international
prospectus, to be used in connection with the offering and sale of Shares
outside the United States and Canada to persons other than United States and
Canadian Persons. The international prospectus is identical to the U.S.
prospectus except for the outside front cover page. The registration statement
as amended at the time it becomes effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities
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Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter referred to as
the "REGISTRATION STATEMENT"; the U.S. prospectus and the international
prospectus in the respective forms first used to confirm sales of Shares are
hereinafter collectively referred to as the "PROSPECTUS." If the Company has
filed an abbreviated registration statement to register additional shares of
Common Stock pursuant to Rule 462(b) under the Securities Act (the "RULE 462
REGISTRATION STATEMENT"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will
not contain any 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, (ii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and
(iii) the Prospectus does not contain and, as amended or supplemented,
if applicable, will not contain any 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, except that the representations and warranties set
forth in this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the
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extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) Upon the closing of the offering of the Shares, the
authorized, issued and outstanding capital stock of the Company will be
as set forth in the Prospectus under the caption "Capitalization" in
the column entitled "As Adjusted," and the authorized capital stock of
the Company conforms as to legal matters to the description thereof
contained in the Prospectus.
(f) The shares of Common Stock (including the Shares to be sold
by the Selling Shareholders) outstanding prior to the issuance of the
Shares to be sold by the Company have been duly authorized and are
validly issued, fully paid and non-assessable.
(g) The Shares to be sold by the Company have been duly
authorized and the Shares, when issued and delivered in accordance with
the terms of this Agreement will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company that is material to the Company,
taken as a whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement).
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(j) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company is a
party or to which any of the properties of the Company is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed as required.
(k) The Company possesses all certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct its business, except where the failure
to possess such certificates, authorizations, or permits would not have
a material adverse effect on the Company, and the Company has not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company, except as described in or contemplated by
the Prospectus.
(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(m) The Company is not and, after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
(n) The Company (i) is in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"), (ii) has received all permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct its
business and (iii) is in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and conditions
of such permits, licenses or
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approvals would not, singly or in the aggregate, have a material
adverse effect on the Company.
(o) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company.
(p) Except for the Amended and Restated Stockholders Agreement
dated as of October 6, 1997 among the Company, Xxxxxxx X. Xxxxxxxx, The
Xxxxxx Xxxxxxx Leveraged Equity Fund II, L.P., Xxxxxx Xxxxxxx Capital
Partners III, L.P., Xxxxxx X. Xxxx Group, Inc., Citicorp Venture
Capital, Ltd. and the other signatories thereto (the "STOCKHOLDERS
AGREEMENT"), 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 or to
require the Company to include such securities with the Shares
registered pursuant to the Registration Statement.
(q) The Company has no subsidiaries.
(r) The Company has good and marketable title in fee simple to
all real property and good and marketable title to all personal
property owned by it which is material to the business of the Company,
in each case free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by
the Company; and any real property and buildings held under lease by
the Company are held by the Company under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such
property and buildings by the Company, except as described in or
contemplated by the Prospectus.
(s) The Company owns or possesses, or can acquire on reasonable
terms, all material patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names currently
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employed by the Company in connection with the business now operated by
the Company, and the Company has not received any notice of
infringement of or conflict with asserted rights of others with respect
to any of the foregoing which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
any material adverse change in the condition, financial or otherwise,
or in the earnings, business or operations of the Company.
(t) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which the Company is
engaged; the Company has not been refused any insurance coverage sought
or applied for; and the Company has no reason to believe that it will
not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that would not
materially and adversely affect the condition, financial or otherwise,
or the earnings, business or operations of the Company, except as
described in or contemplated by the Prospectus.
(u) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) the Company
has not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the
ordinary course of business; (ii) the Company has not purchased any of
its outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock other than
ordinary and customary dividends; and (iii) there has not been any
material change in the capital stock, short-term debt or long-term debt
of the Company, except in each case as described in or contemplated by
the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(v) None of the Company's outstanding securities are rated by any
"nationally recognized statistical rating organization" as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act.
(w) (i) The Stockholders Agreement has been executed and
delivered by the Company and (ii) the employment agreements of Xxxxx X.
Xxxxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx and Xxxxx X. Xxxxxx (the
"EMPLOYMENT AGREEMENTS") as described in the Prospectus have been
executed and delivered by such persons and the Company and each such
Employment Agreement is in full force and effect.
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(x) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
2. Representations and Warranties of the Selling Shareholders. Each
of the Selling Shareholders, severally and not jointly, represents and warrants
to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of,
and the performance by such Selling Shareholder of its obligations
under, this Agreement, and, if applicable, the Custody Agreement signed
by Xxxxxxxx Holdings, L.P., a Firm Selling Shareholder, and Republic
New York Securities Corporation, as Custodian, relating to the deposit
of the Shares to be sold by such Firm Selling Shareholder (the "CUSTODY
AGREEMENT"), including the Power of Attorney appointing certain
individuals as such Firm Selling Shareholder's attorneys-in-fact to the
extent set forth therein, relating to the transactions contemplated
hereby and by the Registration Statement (the "POWER OF ATTORNEY") and
the Shareholders Agreement will not contravene any provision of
applicable law, or the certificate of incorporation or by-laws of such
Selling Stockholder (if such Selling Shareholder is a corporation), or
any agreement or other instrument binding upon such Selling Shareholder
or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over such Selling Shareholder, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by such
Selling Shareholder of its obligations under this Agreement or, if
applicable, the Custody Agreement including the Power of Attorney of
such Selling Stockholder or the Shareholders Agreement except such as
may be required by the securities or Blue Sky laws of the various
states and foreign jurisdictions in connection with the offer and sale
of the Shares.
(c) Such Selling Shareholder has, subject to the proviso of this
paragraph (c), and on the Closing Date or, if applicable, on the Option
Closing Date will have, valid title to the Shares to be sold by such
Selling Shareholder and the legal right and power, and all
authorization and approval required by law, to enter into this
Agreement and to sell, transfer and deliver the Shares to be sold by
such Selling Shareholder; provided
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that Xxxxxxxx Holdings, L.P., a Firm Selling Shareholder, will have
valid title to the Shares to be sold by such Firm Selling Shareholder
and the legal right and power, and all authorization and approval
required by law, to sell, transfer and deliver the Shares to be sold on
the Closing Date upon release of the lien on such Firm Selling
Shareholder's Shares established in favor of Republic National Bank of
New York ("RNB") on June 30, 1997 when such Firm Selling Shareholder
pledged such Shares to RNB as collateral for a personal loan.
(d) The Shares to be sold by such Selling Shareholder pursuant to
this Agreement have been duly authorized and are validly issued, fully
paid and non-assessable.
(e) The Stockholders Agreement and, if applicable, the Custody
Agreement including the Power of Attorney have been duly authorized,
executed and delivered by such Selling Shareholder and are valid and
binding agreements of such Selling Shareholder.
(f) Delivery of the Shares to be sold by such Selling Shareholder
pursuant to this Agreement will pass title to such Shares free and
clear of any security interests, claims, liens, equities and other
encumbrances.
(g) (i) The Registration Statement, when it became effective, did
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not
contain any 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, except
that the representations and warranties set forth in this paragraph
2(g) apply only to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to such
Selling Shareholder furnished to the Company in writing by such Selling
Shareholder for use therein.
(h) Such Selling Shareholder has not taken, and will not take,
directly or indirectly, any action designed to, or which might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares pursuant to the distribution
contemplated by this Agreement, and other than as permitted by the
Securities Act, such Selling Shareholder has not
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distributed and will not distribute any prospectus or other offering
material in connection with the offering and sale of the Shares.
3. Agreements to Sell and Purchase. Each of the Company and the Firm
Selling Shareholders, severally and not jointly, agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees, severally and not jointly, to purchase from such Seller at $_____ per
share (the "PURCHASE PRICE") the number of Firm Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the
same proportion to the number of Firm Shares to be sold by such Seller as the
number of Firm Shares set forth in Schedule II or Schedule III hereto opposite
the name of such Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Additional Selling
Shareholders agree to sell to the U.S. Underwriters up to an aggregate of
_________ Additional Shares and the U.S. Underwriters shall have a one-time
right to purchase, severally and not jointly, up to _________ Additional Shares
at the Purchase Price. If the U.S. Representatives, on behalf of the U.S.
Underwriters, elect to exercise such option, the U.S. Representatives shall so
notify the Additional Selling Shareholders in writing not later than 30 days
after the date of this Agreement, which notice shall specify the number of
Additional Shares to be purchased by the U.S. Underwriters and the date on which
such shares are to be purchased. Such date may be the same as the Closing Date
(as defined below) but not earlier than the Closing Date nor earlier than the
second business day after the giving of the notice hereinafter referred to nor
later than ten business days after the date of such notice. Additional Shares
may be purchased as provided in Section 5 hereof solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. If any Additional Shares are to be purchased, each U.S. Underwriter
agrees, severally and not jointly, to purchase the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as the U.S.
Representatives may determine) that bears the same proportion to the total
number of Additional Shares to be purchased as the number of U.S. Firm Shares
set forth in Schedule II hereto opposite the name of such U.S. Underwriter bears
to the total number of U.S. Firm Shares. The Additional Shares to be purchased
by the U.S. Underwriters hereunder and the U.S. Firm Shares are hereinafter
collectively referred to as the "U.S. SHARES."
Each Seller hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated (except with respect to the Xxxxxx Xxxxxxx
Stockholders (as defined in the Registration Statement and Prospectus), a
written consent must be received from all the U.S. Representatives) on behalf of
the
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Underwriters, it will not, during the period ending 90 days after the date of
the Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend or otherwise transfer or dispose of, directly
or indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock (whether such shares or any such
securities are now owned by such Seller or are hereafter acquired) or (ii) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B)
the issuance by the Company of shares of Common Stock upon the exercise of an
option or warrant or the conversion of a security outstanding on the date hereof
of which the Underwriters have been advised in writing, (C) the issuance of
shares in connection with the conversion from time to time of Class A Common
Stock into shares of Class B Non-Voting Common Stock, par value $.001 per share,
(and vice versa), (E) the grants of stock options to employees, directors or
consultants pursuant to the terms of a plan disclosed in the Registration
Statement which first become exercisable more than 90 days after the date of the
Prospectus, (F) the issuance by the Company of shares of Common Stock pursuant
to any 401(k) plan, (G) bona fide charitable donations or estate planning
dispositions, provided that, prior to such transfer, the transferee in any such
transaction agrees in writing to be bound by the terms of this paragraph and the
form and substance of such writing has received written approval from Xxxxxx
Xxxxxxx & Co. Incorporated, or (H) transfers due to the death or disability of a
seller, provided that the transferee agrees in writing to be bound by the terms
of this paragraph and the form and substance of such writing has received
written approval from Xxxxxx Xxxxxxx & Co. Incorporated. In addition, each
Selling Shareholder agrees that, without the prior written consent of Xxxxxx
Xxxxxxx & Co. Incorporated (except with respect to the Xxxxxx Xxxxxxx
Stockholders (as defined in the Registration Statement and Prospectus), a
written consent must be received from all the U.S. Representatives) on behalf of
the Underwriters, it will not, during the period ending 90 days after the date
of the Prospectus, make any demand for, or exercise any right with respect to,
the registration of any shares of Common Stock or any security convertible into
or exercisable or exchangeable for Common Stock.
4. Terms of Public Offering. The Sellers are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Sellers are further
advised by you that the Shares are to be offered to the public initially at
U.S.$_____ a share (the "PUBLIC OFFERING PRICE") and to certain dealers selected
by you at a price that
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represents a concession not in excess of U.S.$____ a share under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of U.S.$____ a share, to any Underwriter or
to certain other dealers.
5. Payment and Delivery. Payment for the Firm Shares to be sold by
the Company and the Firm Selling Shareholder shall be made to each such Seller
in Federal or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 A.M., New York City time, on April __, 1998, or at such
other time on the same or such other date, not later than April __, 1998, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "CLOSING DATE."
Payment for any Additional Shares to be sold by Additional Selling
Shareholders shall be made to each such Selling Shareholder in Federal or other
funds immediately available in New York City against delivery of such Additional
Shares for the respective accounts of the several Underwriters at 10:00 A.M.,
New York City time, on the date specified in the notice described in Section 3
or at such other time on the same or on such other date, in any event not later
than ___________, 1998, as shall be designated in writing by the U.S.
Representatives. The time and date of such payment are hereinafter referred to
as the "OPTION CLOSING DATE."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The obligations of
the Company and the Selling Shareholders to sell the Shares to the Underwriters
and the several obligations of the Underwriters to purchase and pay for the
Shares on the Closing Date are subject to the condition that the Registration
Statement shall have become effective not later than 3:00 p.m. (New York City
time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
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(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date there shall not have occurred any change,
or any development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in your judgment, is material and adverse and that
makes it, in your judgment, impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, acting in such capacity but not personally, to the
effect that the representations and warranties of the Company contained
in this Agreement are true and correct as of the Closing Date and that
the Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied hereunder on
or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received a certificate from or on
behalf of each Firm Selling Shareholder, dated the Closing Date and
signed by or on behalf of such Firm Selling Shareholder, to the effect
that the representations and warranties of such Selling Shareholder
contained in this Agreement are true and correct as of the Closing Date
and that such Selling Shareholder has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, outside counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Delaware, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification;
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(ii) upon the closing of the offering of the Shares, the
authorized, issued and outstanding capital stock of the Company
will be as set forth in the Prospectus under the caption
"Capitalization" in the column entitled "As Adjusted," and the
authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus;
(iii) the shares of Common Stock (including the Shares to be
sold by the Selling Shareholders) outstanding prior to the
issuance of the Shares to be sold by the Company have been duly
authorized and are validly issued, fully paid and non-assessable;
(iv) the Shares have been duly authorized and when issued and
delivered in accordance with the terms of this Agreement, will be
non-assessable, and the issuance of such Shares will not be
subject to any preemptive rights or rights in the nature of
preemptive rights;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement and the Stockholders Agreement will not contravene any
provision of applicable law or the certificate of incorporation
or by-laws of the Company or, to the best of such counsel's
knowledge, any agreement or other instrument binding upon the
Company that is material to the Company, or, to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required
for the performance by the Company of its obligations under this
Agreement and the Stockholders Agreement, except such as may be
required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Shares by the U.S.
Underwriters or foreign securities laws or regulations in
connection with the offer and sale of the Shares by the
International Underwriters;
(vii) the statements (A) in the Prospectus under the captions
"Risk Factors -- Anti-Takeover Effect of Certain Charter, By-law
and Statutory Provisions," "Management -- Employment
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Agreements," " -- 1996 Salaried Bonus Plan," " -- Stock Option
Plans" and " -- 401(k) Profit Sharing Plan," "Certain
Relationships and Related Transactions," "Certain United States
Federal Income Tax Considerations for Non-U.S. Holders,"
"Description of Capital Stock," "Underwriters" and (B) in the
Registration Statement in Items 14 and 15, in each case insofar
as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present in
all material respects the information called for with respect to
such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
(viii) to such counsel's knowledge, after due inquiry, no
legal or governmental proceedings are pending or threatened to
which the Company is a party or to which any of the properties of
the Company is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described
or of any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required;
(ix) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended; and
(x) the Company (A) is in compliance with any and all
applicable Environmental laws, (B) has received all permits,
licenses or other approvals required under applicable
Environmental Laws to conduct its business and (C) is in
compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licences
or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the
Company, taken as a whole; and
(xi) such counsel (A) is of the opinion that the Registration
Statement and Prospectus (except for financial statements and
schedules and other financial and statistical data
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included therein as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder, (B) has no reason to believe that
(except for financial statements and schedules and other
financial and statistical data as to which such counsel need
not express any belief) the Registration Statement and the
prospectus included therein at the time the Registration
Statement became effective contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading and (C) has no reason to believe that (except
for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any
belief) the Prospectus contains any untrue statement of a
material fact 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.
(e) The Underwriters shall have received on the Closing Date
an opinion of counsel for each of the Selling Shareholders dated
the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by or on behalf of each Selling Shareholder;
(ii) the execution and delivery by each Selling
Shareholder of, and the performance by such Selling
Shareholder of its obligations under, this Agreement and, if
applicable, the Custody Agreement including the Power of
Attorney of such Selling Shareholder and the Stockholders
Agreement will not contravene any provision of applicable law,
or, to the best of such counsel's knowledge, any agreement or
other instrument binding upon such Selling Shareholder or, to
the best of such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over such Selling Shareholder, and no consent,
approval, authorization or order of, or qualification with,
any governmental body or agency is required for the
performance by such Selling Shareholder of its obligations
under this Agreement or, if applicable, the Custody Agreement
including the Power of Attorney of such Selling Shareholder or
the Stockholders Agreement, except such as may be required by
the securities or Blue Sky laws of the various states and
foreign jurisdictions in connection with offer and sale of the
Shares;
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(iii) each of the Selling Shareholders has valid title to
the Shares to be sold by such Selling Shareholder and the
legal right and power, and all authorization and approval
required by law, to enter into this Agreement, if applicable,
the Custody Agreement including the Power of Attorney of such
Selling Shareholder and the Stockholders Agreement and to
sell, transfer and deliver the Shares to be sold by such
Selling Shareholder;
(iv) the Stockholders Agreement and, if applicable, the
Custody Agreement including the Power of Attorney of each
Selling Shareholder have been duly authorized, executed and
delivered by such Selling Shareholder and are valid and
binding agreements of such Selling Shareholder;
(v) delivery of the Shares to be sold by each Selling
Shareholder pursuant to this Agreement will pass title to such
Shares free and clear of any security interests, claims,
liens, equities and other encumbrances; and
(vi) such counsel (A) has no reason to believe that the
Registration Statement and the prospectus included therein at
the time the Registration Statement became effective contained
any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading and (B) has no
reason to believe that the Prospectus contains any untrue
statement of a material fact 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; such opinion shall relate only to information
furnished in writing by or on behalf of the Selling
Shareholder represented by such counsel expressly for use in
the Registration Statement or Prospectus.
(f) The Underwriters shall have received on the Closing Date
an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters,
dated the Closing Date, covering the matters referred to in Sections
6(d)(iv) (but only with respect to the Shares), 6(d)(v), 6(d)(vii) (but
only as to the statements in the Prospectus under "Underwriters") and
6(d)(xi) above.
With respect to Section 6(d)(xi) above, Xxxxxxxxxxxx Xxxx &
Xxxxxxxxx and Xxxxx Xxxx & Xxxxxxxx may state that their opinion and
belief are based upon their participation in the preparation of the
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Registration Statement and Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof, but are
without independent check or verification, except as specified.
The opinions of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx and counsel for
each Selling Shareholder, described in Sections 6(d) and 6(e) above
shall be rendered to the Underwriters at the request of the Company or
the Selling Shareholders, as the case may be, and shall so state
therein.
(g) RNB shall have (i) released its lien on all Shares to be
sold by the Firm Selling Stockholder and (ii) delivered executed UCC
Form 3s evidencing the termination by RNB of all recorded security
interests in such Shares.
(h) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from Ernst & Young LLP, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus;
provided that the letter delivered on the Closing Date shall use a
"cut-off date" not earlier than the date hereof.
(i) The "lock-up" agreements, each substantially in the form
of Exhibit A hereto, between you and certain shareholders, officers and
directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities,
delivered to you on or before the date hereof, shall be in full force
and effect on the Closing Date.
The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as they
may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Additional Shares
and other matters related to the issuance of the Additional Shares.
7. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, five signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each
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other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City,
without charge, prior to 10:00 A.M. New York City time on the business
day next succeeding the date of this Agreement and during the period
mentioned in Section 7(c) below, as many copies of the Prospectus and
any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company)
to which Shares may have been sold by you on behalf of the Underwriters
and to any other dealers upon request, either amendments or supplements
to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering
the twelve-month period ending June 30, 1999 that satisfies the
provisions
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of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel and the Company's accountants in connection
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable
fees and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the National
Association of Securities Dealers, Inc., (v) all fees and expenses in connection
with the preparation and filing of the registration statement on Form 8-A
relating to the Common Stock and all costs and expenses incident to listing the
Shares on the New York Stock Exchange, (vi) the cost of printing certificates
representing the Shares, (vii) all expenses in connection with any offer and
sale of the Share outside of the United States, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
with offers and sales outside of the United States, (viii) the costs and charges
of any transfer agent, registrar or depositary, (ix) the costs and expenses of
the Company relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Shares, including, without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show with the prior approval of the Company, and (x) all other costs and
expenses incident to the performance of the obligations of the Company hereunder
for which provision is
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not otherwise made in this Section. Whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is terminated, each Selling
Shareholder agrees to pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including the fees,
disbursements and expenses of such Selling Shareholder's counsel, but not
including any of the expenses payable by the Company as set forth above. It is
understood, however, that except as provided in this Section, Section 9 entitled
"Indemnity and Contribution," and the last paragraph of Section 11 below, the
Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable on resale of any of
the Shares by them and any advertising expenses connected with any offers they
may make and their out-of-pocket costs with respect to any "road show"
undertaken in connection with the marketing of the offering of the Shares.
The provisions of this Section shall not supersede or otherwise affect
any agreement that the Sellers may otherwise have for the allocation of such
expenses among themselves.
9. Indemnity and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(b) Each Selling Shareholder agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, each Underwriter and each person, if any who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act from and against any and all losses, claims, damages and
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liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by 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,
but only with reference to information relating to such Selling Shareholder
furnished in writing by or on behalf of such Selling Shareholder expressly for
use in the Registration Statement, any preliminary prospectus, the Prospectus or
any amendments or supplements thereto.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Selling Shareholders, the directors of the
Company, the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company or any Selling Shareholder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by 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,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 9(a), 9(b), 9(c) or 9(d), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party) to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel,
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but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
controlling any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of either such Section,
(iii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for all Selling Shareholders and all persons, if any, who control
any Selling Shareholder within the meaning of either such Section. In the case
of any such separate firm for the Underwriters, and such control persons of any
Underwriters, such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co.
Incorporated. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case of any such separate firm for
the Selling Shareholders and such control persons of any Selling Shareholders,
such firm shall be designated in writing by the Selling Shareholders selling a
majority of the amount of shares being sold by the Selling Shareholders under
this Agreement. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless
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such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a),
9(b), 9(c) or 9(d) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 9(f)(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 9(f)(i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Sellers and the Underwriters shall be deemed to be in the same
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Sellers and the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus respectively bear to the sum of the
aggregate Public Offering Price of the Shares. The relative fault of the Sellers
on the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Sellers or by either of the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Underwriters'
respective obligations to contribute pursuant to this Section 9 are several in
proportion to the respective number of Shares they have purchased hereunder, and
not joint.
(f) The Sellers and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 9 were 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 account of the
equitable considerations referred to in Section 9(f). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, no Underwriter
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shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. Notwithstanding the
provisions of this Section 9, no Selling Shareholder shall be required to
contribute any amount in excess of the amount of net proceeds received by such
selling Shareholder with respect to the Shares sold by such Selling Shareholder.
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 remedies provided
for in this Section 9 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
The indemnity and contribution provisions contained in this Section 9
and the representations, warranties and other statements of the Company and the
Selling Shareholders contained in this Agreement shall remain operative and in
full force and effect regardless of any termination of this Agreement, any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, any Selling Shareholder or any person controlling any Selling
Shareholder, or the Company, the Company's officers or directors or any person
controlling the Company and acceptance of and payment for any of the Shares.
10. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, trading of any securities of
the Company shall have been suspended on any exchange or in any over-the-counter
market, a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and in the case of any of the events specified in clauses 10(a)(i)
through 10(a)(iv), such event, singly or together with any other such event,
makes it, in your judgment, impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
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If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule II or Schedule III bears to the
aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 11 by an amount in excess of
one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares to be purchased, and arrangements satisfactory to you, the
Company and the Selling Shareholders for the purchase of such Firm Shares are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Shareholders. In any such case either you or the relevant Sellers
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. If, on the Option Closing Date, any U.S. Underwriter or U.S.
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
U.S. Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
U.S. Underwriter from liability in respect of any default of such U.S.
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of any Seller to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Seller shall be unable to perform its obligations under this
Agreement, the Sellers will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses
27
28
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering contemplated
hereunder.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
AMERICAN ITALIAN PASTA COMPANY
By:
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
XXXXXXXX HOLDINGS, L.P.
By:
-------------------------------
Attorney-in-Fact
THE XXXXXX XXXXXXX LEVERAGED
EQUITY FUND II, L.P.
By: Xxxxxx Xxxxxxx Leveraged Equity
Holdings, Inc., its general partner
By:
---------------------------------
Name:
Title:
29
XXXXXX XXXXXXX CAPITAL
PARTNERS III, L.P.
By: MSCP III, L.P., its general partner
By: Xxxxxx Xxxxxxx Capital Partners III,
Inc., its general partner
By:
------------------------------------
Name:
Title:
XXXXXX XXXXXXX CAPITAL
INVESTORS, L.P.
By: MSCP III, L.P., its general partner
By: Xxxxxx Xxxxxxx Capital Partners III,
Inc., its general partner
By:
------------------------------------
Name:
Title:
MSCP III 892 INVESTORS, L.P.
By: MSCP III, L.P., its general partner
By: Xxxxxx Xxxxxxx Capital Partners III,
Inc., its general partner
By:
------------------------------------
Name:
Title:
30
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
BT ALEX. XXXXX INCORPORATED
XXXXXXX, SACHS & CO.
XXXXXX X. XXXX & COMPANY
Acting severally on behalf of themselves and the several U.S. Underwriters
named in Schedule II hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
------------------------------------
Name:
Title:
XXXXXX XXXXXXX & CO.
INTERNATIONAL LIMITED
BT ALEX. XXXXX INTERNATIONAL
XXXXXXX SACHS INTERNATIONAL
XXXXXX X. XXXX & COMPANY
Acting severally on behalf of themselves and the several International
Underwriters named in Schedule III hereto.
By: Xxxxxx Xxxxxxx & Co. International Limited
By:
------------------------------------
Name:
Title:
31
SCHEDULE I
PART A
SELLING SHAREHOLDER NUMBER OF FIRM SHARES
TO BE SOLD
------------------------------------------------ --------------------
Xxxxxxxx Holdings, L.P................................
The Xxxxxx Xxxxxxx Leveraged
Equity Fund II, L.P.............................
Xxxxxx Xxxxxxx Capital Partners III, L.P..............
MSCP III 892 Investors, L.P...........................
Xxxxxx Xxxxxxx Capital Investors, L.P.................
-------------------
Total ............................................ ===================
32
SCHEDULE I
PART B
NUMBER-OF-ADDITIONAL
SELLLING SHAREHOLDER SHARES TO BE SOLD
------------------------------------------------------ --------------------
The Xxxxxx Xxxxxxx Leveraged
Equity Fund II, L.P............................
Xxxxxx Xxxxxxx Capital Partners III, L.P.............
MSCP III 892 Investors, L.P..........................
Xxxxxx Xxxxxxx Capital Investors, L.P................
--------------------
Total ......................................... ====================
2
33
SCHEDULE II
U.S. UNDERWRITERS
NUMBER OF FIRM SHARES
UNDERWRITERS TO BE PURCHASED
---------------------------------------------------------- ---------------------
Xxxxxx Xxxxxxx & Co. Incorporated.............................
BT Alex. Xxxxx Incorporated...................................
Xxxxxxx, Sachs & Co...........................................
Xxxxxx X. Xxxx & Company......................................
Xxxxxxx Securities Inc........................................
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation..................................
X.X. Xxxxxxx & Sons, Inc......................................
Xxxxxx Xxxx LLC...............................................
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc..............................
Xxxxxx Xxxxxxxxxx Xxxxx Inc...................................
Xxxxxx X. Xxxxx & Co., L.P....................................
Xxxxxxxxxxx, Pettis, Smith, Polian Inc........................
Xxxxxxx Xxxxx Xxxxxx, Xxxxxx & Xxxxx
Incorporated............................................
Prudential Securities Incorporated............................
The Xxxxxxxx-Xxxxxxxx Company, Inc............................
Xxxxx Xxxxxx Inc..............................................
Xxxxxxxx Inc.................................................. ---------------
Total U.S. Firm Shares...................................... ===============
34
SCHEDULE III
INTERNATIONAL UNDERWRITERS
NUMBER OF FIRM SHARES
UNDERWRITER TO BE PURCHASED
-------------------------------------- ---------------------
Xxxxxx Xxxxxxx & Co.
International Limited...............
BT Alex. Xxxxx International..........
Xxxxxxx Sachs International...........
Xxxxxx X. Xxxx & Company..............
---------------------
Total International Shares......... =====================
35
EXHIBIT A
[FORM OF LOCK-UP LETTER]
April , 1998
Xxxxxx Xxxxxxx & Co. Incorporated
BT Alex. Xxxxx Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxx X. Xxxx & Company
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. International Limited
BT Alex. Xxxxx International
Xxxxxxx Sachs International
Xxxxxx X. Xxxx & Company
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") and Xxxxxx Xxxxxxx & Co. International Limited ("MSIL")
propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT")
with American Italian Pasta Company, a Delaware corporation (the "COMPANY"),
and certain shareholders of the Company providing for the public offering (the
"PUBLIC OFFERING") by the several Underwriters, including Xxxxxx Xxxxxxx and
MSIL (the "UNDERWRITERS") of ________ shares (the "SHARES") of Class A Common
Stock, par value $.001 per share, of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 90 days after the date of the final
prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer,
pledge, sell, contract to sell, sell any option
36
or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock (whether such shares or
securities are either now owned by the undersigned or are hereafter acquired
prior to or in connection with the Public Offering), or (2) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing
sentences shall not apply to (a) bona fide charitable donations or estate
planning dispositions, provided that, prior to such transfer, the transferee in
any such transaction agrees in writing to be bound by the terms of this
agreement and the form and substance of such writing has received written
approval from Xxxxxx Xxxxxxx or (b) transfers due to the death or disability of
a seller, provided that the transferee agrees in writing to be bound by the
terms of this agreement and the form and substance of such writing has received
written approval from Xxxxxx Xxxxxxx. In addition, the undersigned agrees that,
without the prior written consent of Xxxxxx Xxxxxxx on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 90 days after the date of the Prospectus, make any demand for or exercise
any right with respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. This letter agreement will terminate in
the event that the Public Offering has not been consummated on or prior to
__________, 1998. Any Public Offering will only be made pursuant to an
Underwriting Agreement, the terms of which are subject to negotiation between
the Company and the Underwriters.
Very truly yours,
___________________________________
Name
___________________________________
Address
