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EXHIBIT 1
CENTRAL PARKING CORPORATION
4,510,000 SHARES
OF
COMMON STOCK
UNDERWRITING AGREEMENT
April ____, 1997
X.X. XXXXXXXX & CO., LLC
XXXXXXX XXXXX & COMPANY, LLC
EQUITABLE SECURITIES CORPORATION
As Representatives of the Several Underwriters
c/o X.X. Xxxxxxxx & Co.
X.X. Xxxxxxxx Financial Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Central Parking Corporation, a Tennessee corporation (the "Company"),
and certain shareholders of the Company identified on Schedule I hereto (the
"Selling Shareholders") propose to sell to the several underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as the
representatives (the "Representatives"), 3,300,000 and 800,000 shares,
respectively, 4,100,000 of common stock, par value $.01 per share ("Common
Stock"), of the Company. The 4,100,000 shares of Common Stock are referred to
herein as the "Firm Shares." The Company proposes to grant to the Underwriters
an option to purchase up to 410,000 additional shares of Common Stock (the
"Option Shares"), as provided for in Section 3 of this Agreement, for the
purpose of covering over-allotments. The Underwriters, severally and not
jointly, are willing to purchase the Firm Shares set forth opposite their
respective names on Schedule II hereto and their pro rata share of the Option
Shares in the event the Representatives elect to exercise the over- allotment
option in whole or in part. The Firm Shares and the Option Shares purchasable
pursuant to this Agreement are collectively referred to herein as the "Shares."
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
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(a) The Company meets the requirements for use of, and
has filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), a registration statement on Form S-3 (Registration
No. 333-__________), including the related preliminary prospectus
relating to the Shares, and has filed one or more amendments thereto.
Copies of such registration statement and any amendments, including
any post-effective amendments, and all forms of the related
prospectuses contained therein and any supplements thereto, have been
delivered to you. Such registration statement, including the
prospectus, Part II, the information incorporated by reference, all
financial schedules and exhibits thereto, and all information deemed
to be a part of such Registration Statement pursuant to Rule 430A and
Rule 434 under the Securities Act, as amended at the time when it
shall become effective, together with any registration statement filed
by the Company pursuant to Rule 462(b) of the Securities Act, is
herein referred to as the "Registration Statement," and the prospectus
included as part of the Registration Statement on file with the
Commission that discloses all the information that was omitted from
the prospectus on the effective date pursuant to Rule 430A or Rule 434
of the Rules and Regulations (as defined below) and in the form filed
pursuant to Rule 424(b) under the Securities Act is herein referred to
as the "Final Prospectus." The prospectus included as part of the
Registration Statement on the date when the Registration Statement
became effective is referred to herein as the "Effective Prospectus."
Any prospectus included in the Registration Statement and in any
amendment thereto prior to the effective date of the Registration
Statement is referred to herein as a "Preliminary Prospectus." For
purposes of this Agreement, "Rules and Regulations" mean the rules and
regulations promulgated by the Commission under either the Securities
Act or the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as applicable.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus, and each Preliminary
Prospectus, at the time of filing thereof, complied with the
requirements of the Securities Act and the Rules and Regulations, and
did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; except that the foregoing does
not apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter specifically for use therein (it being understood that the
only information so provided is the information included in the last
paragraph on the cover page and in the first, third, and fourth
paragraphs under the caption "Underwriting" in the Final Prospectus).
When the Registration Statement becomes effective and at all times
subsequent thereto up to and including the First Closing Date (as
hereinafter defined), (i) the Registration Statement, the Effective
Prospectus, and the Final Prospectus, and any amendments or
supplements thereto will contain all statements which are required to
be stated therein in accordance with the Securities Act, the Exchange
Act, and the Rules and Regulations and will comply with the
requirements of the Securities Act, the Exchange Act and the Rules and
Regulations, and (ii) neither the Registration Statement, the
Effective Prospectus, nor the Final Prospectus nor any amendment or
supplement thereto will include
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any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they are made, not
misleading; except that the foregoing does not apply to statements or
omissions made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter specifically
for use therein (it being understood that the only information so
provided is the information included in the last paragraph on the
cover page and in the first, third, and fourth paragraphs under the
caption "Underwriting" in the Final Prospectus).
(c) The documents that are incorporated by reference in
any Preliminary, Effective and Final Prospectus or from which
information is so incorporated by reference, when they become
effective or were filed with the Commission, as the case may be,
complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and the Rules and
Regulations, and any documents so filed prior to the termination of
this offering and incorporated by reference subsequent to the
effective date of the Registration Statement shall, when they are
filed with the Commission, conform in all material respects with the
requirements of the Securities Act and the Exchange Act, as
applicable, and the Rules and Regulations.
(d) The Company and each subsidiary of the Company (as
used herein, the term "subsidiary" includes Square Industries, Inc.
and any other corporation, joint venture, or partnership in which the
Company or any subsidiary of the Company has 50% or greater ownership
interest) is duly organized and validly existing and in good standing
under the laws of its jurisdiction of incorporation, with full power
and authority (corporate and other, as the case may be) to own its
properties and conduct its business as now conducted and is duly
qualified or authorized to do business and is in good standing in all
jurisdictions wherein the nature of its business or the character of
property owned or leased may require it to be qualified or authorized
to do business, except for jurisdictions in which the failure to so
qualify would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole. The Company and its subsidiaries
hold all licenses, consents, and approvals, and have satisfied all
eligibility and other similar requirements imposed by federal and
state regulatory bodies, administrative agencies, or other
governmental bodies, agencies, or officials, in each case as material
to the conduct of the business in which it is engaged as described in
the Effective Prospectus and the Final Prospectus.
(e) The capitalization of the Company as of December 31,
1996 is as set forth under the caption "Capitalization" in the
Effective Prospectus and the Final Prospectus, and the Company's
capital stock conforms to the description thereof contained or
incorporated by reference in the Effective Prospectus and the Final
Prospectus. All the issued shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable. None of the issued shares of capital stock of the
Company have been issued in violation of any preemptive or similar
rights. The Shares have been duly and validly authorized and, upon
issuance and delivery and payment therefor in the manner
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herein described, will be validly issued, fully paid, and
nonassessable. Upon the effective date of the offering of the Shares,
there will be no preemptive rights or other rights to subscribe for or
to purchase, or any restriction upon the transfer of, any shares of
Common Stock pursuant to the Company's Amended and Restated Charter,
bylaws, or other governing documents or any agreement or other
instrument to which the Company is a party or by which it may be
bound, except as described in the Effective Prospectus and the Final
Prospectus, and except for restrictions on transfer imposed under
applicable securities laws. Neither the filing of the Registration
Statement nor the offer or sale of the Shares as contemplated by this
Agreement gives rise to any rights for or relating to the registration
of any shares of Common Stock or any other securities of the Company.
The Underwriters will receive good and marketable title to the Shares
to be issued and delivered hereunder by the Company, free and clear of
all liens, encumbrances, claims, security interests, restrictions,
shareholders' agreements and voting trusts whatsoever.
(f) As of the date hereof, except as set forth on Exhibit
1(f) hereto, all of the outstanding shares of capital stock or equity
interests of the Company's subsidiaries are owned by the Company
directly or indirectly through another subsidiary, free and clear of
all liens, claims, encumbrances, security interests, restrictions,
shareholder agreements, voting trusts or other claims of third
parties. There are no preemptive rights or other rights to subscribe
for or purchase, or any restriction upon the transfer of any shares of
capital stock of the Company's subsidiaries pursuant to any
subsidiary's charter, bylaws, or other governing documents or any
agreement or other instruments to which such subsidiary is a party.
(g) All offers and sales of the Company's securities
prior to the date hereof were at all relevant times duly registered or
the subject of an available exemption from the registration
requirements of the Securities Act and the applicable state securities
or Blue Sky laws.
(h) The Company has full legal right, power, and
authority to enter into this Agreement and to sell and deliver the
Shares to the Underwriters as provided herein, and this Agreement has
been duly authorized, executed, and delivered by the Company and
constitutes a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms. No consent,
approval, authorization, or order of any court or governmental agency
or body or third party is required for the performance of this
Agreement by the Company or the consummation by the Company of the
transactions contemplated hereby, except such as have been obtained
and such as may be required by the National Association of Securities
Dealers, Inc. ("NASD") or under the Securities Act, or state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters. The issue and sale of
the Shares by the Company, the Company's performance of this
Agreement, and the consummation of the transactions contemplated
hereby will not result in a breach or violation of, or conflict with,
any of the terms and provisions of, or constitute a default by the
Company under, any indenture,
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mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or to which any of their properties is subject, the Amended and
Restated Charter or bylaws of the Company, or any statute or any
judgment, decree, order, rule, or regulation of any court or
governmental agency or body applicable to the Company or any of its
subsidiaries or any of their properties. The Company is not in
violation of its Amended and Restated Charter or bylaws or any law,
administrative rule, or regulation or arbitrator's or administrative
or court decree, judgment or order or in violation or default (there
being no existing state of facts which with notice or lapse of time or
both would constitute a default) in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, deed of trust, mortgage, loan agreement, note,
lease, agreement or other instrument or permit to which it is a party
or by which it or any of its properties is or may be bound, other than
violations and defaults which could not reasonably be expected to have
a material adverse effect on the business condition (financial or
otherwise), prospects, net worth, or results of operations of the
Company and its subsidiaries, taken as a whole.
(i) The consolidated financial statements and the related
notes of the Company included or incorporated by reference in the
Registration Statement, the Effective Prospectus and the Final
Prospectus present fairly the financial position, results of
operations, and changes in financial position and cash flow of the
Company at the dates and for the periods to which they relate and have
been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods
indicated. The unaudited pro forma financial statements included or
incorporated by reference in the Registration Statement, the Effective
Prospectus, and the Final Prospectus comply in all material respects
with the applicable accounting requirements of Article 11 of
Regulation S-X promulgated by the Commission, and the pro forma
adjustments have been applied properly to the historical financial
statements. The other financial and statistical data included or
incorporated by reference in the Effective Prospectus and the Final
Prospectus fairly presents the information set forth therein on the
basis stated in the Effective Prospectus and the Final Prospectus.
KPMG Peat Marwick LLP, whose report appears in the Effective
Prospectus and the Final Prospectus, are independent accountants as
required by the Securities Act and the Rules and Regulations.
(j) Subsequent to September 30, 1996, neither the Company
nor any of its subsidiaries has sustained any material loss or
interference with its or their business or properties from fire,
flood, hurricane, earthquake, accident, or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, which is not disclosed in the
Effective Prospectus and the Final Prospectus; and subsequent to the
respective dates as of which information is given in the Registration
Statement, the Effective Prospectus and the Final Prospectus, (i)
neither the Company nor any of its subsidiaries has incurred any
material liabilities or obligations, direct or contingent, or entered
into any material transactions not in the ordinary course of business,
and (ii) there has not been any change in the capital stock,
partnership interests, joint venture interests,
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long-term debt, obligations under capital leases or short-term
borrowings of the Company, other than in the ordinary course of
business, or any issuance of options, warrants or rights to purchase
the capital stock of the Company, or any adverse change, or any
development involving a prospective adverse change, in the general
affairs, management, business, prospects, financial position, net
worth, or results of operations of the Company, except in each case
as described in or contemplated by the Effective Prospectus and the
Final Prospectus.
(k) There is not pending, or to the knowledge of the
Company threatened, any action, suit, proceeding, inquiry, or
investigation, to which the Company or any of its subsidiaries or any
of the Company's officers or directors is a party, or to which the
property of the Company or any of its subsidiaries is subject, before
or brought by any court or governmental agency or body, wherein an
unfavorable decision, ruling, or finding could prevent or materially
hinder the consummation of this Agreement or could have a material
adverse effect on the business condition (financial or otherwise),
prospects, net worth, or results of operations of the Company and its
subsidiaries, taken as a whole.
(l) There are no contracts or other documents required by
the Securities Act or by the Rules and Regulations to be described in
the Registration Statement, the Effective Prospectus or the Final
Prospectus or to be filed as exhibits to the Registration Statement
which have not been described, incorporated by reference, or filed as
required.
(m) Except as described in the Effective Prospectus and
the Final Prospectus, the Company and its subsidiaries have good and
marketable title to all real and material personal property owned by
them, free and clear of all liens, charges, encumbrances, or defects
except those reflected in the financial statements hereinabove
described. The real and personal property and buildings referred to
in the Effective Prospectus and the Final Prospectus which are leased
from others by the Company or its subsidiaries are held under valid,
subsisting and enforceable leases. The Company and its subsidiaries
own or lease all such properties as are necessary to their operations
as now conducted.
(n) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(o) The Company and each of its subsidiaries have filed
all federal, state, and local income, excise, and franchise tax
returns required to be filed through the date hereof and have paid all
taxes shown as due therefrom; and there is no tax deficiency that has
been,
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nor does the Company or any of its subsidiaries have knowledge
of any tax deficiency which is likely to be asserted against the
Company or any of its subsidiaries, which if determined adversely
could materially and adversely affect the earnings, assets, affairs,
business prospects, or condition (financial or otherwise) of the
Company and its subsidiaries, taken as a whole.
(p) The Company and each of its subsidiaries operate
their businesses in conformity in all material respects with all
applicable statutes, common laws, ordinances, decrees, orders, rules,
and regulations of governmental bodies. The Company and each of its
subsidiaries have all material licenses, approvals, or consents to
operate their businesses in all locations in which such businesses are
currently being operated, and neither the Company nor any of its
subsidiaries is aware of any existing or imminent matter that may
materially adversely impact any of their operations or business
prospects other than as specifically disclosed in the Effective
Prospectus and the Final Prospectus. No director, officer, or to the
Company's knowledge, agent or employee of the Company or any of its
subsidiaries, any other person associated with or acting for or on
behalf of the Company or any of its subsidiaries, has directly or
indirectly made any contribution, gift, bribe, rebate, payoff,
influence payment, kickback, or other payment to any person, private
or public, regardless of form, whether in money, property, or services
(x) to obtain favorable treatment in securing business, (y) to pay for
favorable treatment for business obtained, or (z) to obtain special
concessions or for special concessions already obtained for or in
respect of the Company.
(q) Neither the Company nor any of its subsidiaries has
failed to file with the applicable regulatory authorities any
statement, report, information, or form required by any applicable
law, regulation, or order where the failure to file the same would
have a material adverse effect on the Company and its subsidiaries,
taken as a whole, or on their respective abilities to conduct business
in any state; all such filings or submissions were in material
compliance with applicable laws when filed and no deficiencies have
been asserted by any regulatory commission, agency or authority with
respect to such filings or submissions. Neither the Company nor any
of its subsidiaries has failed to maintain in full force and effect
any material license or permit necessary or proper for the conduct of
their respective businesses, or received any notification that any
revocation or limitation thereof is threatened or pending, and, except
as disclosed in the Effective Prospectus and the Final Prospectus,
there is not pending any change under any law, regulation, license or
permit which could materially adversely affect any of their respective
businesses, operations, properties or business prospects. Neither the
Company nor any of its subsidiaries has received any notice of
violation of or been threatened with a charge of violating and are
not, to the best of their knowledge, under investigation with respect
to a possible violation of any provision of any law, regulation, or
order.
(r) No labor dispute exists with the Company's or any of
its subsidiaries' employees or is imminent which could materially
adversely affect the Company. Neither the
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Company nor any of its subsidiaries is aware of any existing or
imminent labor disturbance by any of their employees which could be
expected to materially adversely affect the condition (financial or
otherwise), results of operations, properties, affairs, management,
business affairs, or business prospects of the Company and its
subsidiaries, taken as a whole.
(s) The Company owns or possesses, or can acquire on
reasonable terms, the patents, licenses, copyrights, trademarks,
service marks and trade names presently employed by it in connection
with the businesses now operated by it, and neither the Company nor
any of its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the
foregoing which, alone 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 affairs, or business prospects of the Company and
its subsidiaries, taken as a whole.
(t) Neither the Company nor any of the directors,
officers, or to the Company's knowledge, employees or agents of the
Company, have taken and will not take, directly or indirectly, any
action designed to cause or result in, or which has constituted or
which might be expected to constitute, stabilization or manipulation
of the price of the Common Stock.
(u) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
hazardous substances by the Company or any of its subsidiaries (or, to
the knowledge of the Company, any of its or their predecessors in
interest) at, upon or from any of the property now or previously owned
or leased by the Company or any of its subsidiaries in violation of
any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit or which could reasonably be expected to require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or
remedial action which could not be reasonably likely to have,
singularly or in the aggregate with all such violations and remedial
actions, a material adverse effect on the business, condition
(financial or otherwise), prospects, properties, net worth or results
of operations of the Company and its subsidiaries, taken as a whole;
there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property
or of any hazardous substances due to or caused by the Company or any
of its subsidiaries or with respect to which the Company or any of its
subsidiaries had knowledge, except for any such spill, discharge,
leak, emission, injection, escapes, dumpings or releases which would
not be reasonably likely to have, singularly or in the aggregate with
all such spills, discharges, leaks, emissions, injections, escapes,
dumpings or releases, a material adverse effect on the business,
condition (financial or otherwise), prospects, properties, net worth
or results of operations of the Company and its subsidiaries, taken as
a whole; and the term "hazardous substances" shall have the meaning
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
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(v) The Company and its subsidiaries are insured by
insurers of recognized financial responsibility against such
losses and risks and in such amounts as management believes is
appropriate to the business of the Company and its subsidiaries; all
such policies of insurance insuring the Company and its subsidiaries
or their respective businesses, assets, employees, officers and
directors are in full force and effect; the Company and its
subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; and there are no 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.
(w) The Company is not, will not become as a result of the
transactions contemplated hereby, and does not intend to conduct its
business in a manner that would cause it to become, an "investment
company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940.
(x) The Shares have been listed for trading on The New
York Stock Exchange, upon official notice of issuance.
2. Representations and Warranties of the Selling Shareholders.
Each of the Selling Shareholders, severally and not jointly, represents and
warrants to each Underwriter and agrees as follows that:
(a) Such Selling Shareholder at the First Closing Date or
at the Option Closing Date (as such closing dates are defined herein),
as the case may be, will have valid and marketable title to the Shares
set forth in
Schedule I to be sold by such Selling Shareholder, free and
clear of any liens, encumbrances, equities, and claims (other than as
imposed by the Securities Act or this Agreement), and full right,
power, and authority to effect the sale and delivery of such Shares;
and upon the delivery of and payment for the Shares to be sold by such
Selling Shareholder pursuant to this Agreement, valid and marketable
title thereto, free and clear of any liens, encumbrances, equities,
and claims, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and
delivered the Custody Agreement and Power of Attorney in the form
previously delivered to the Representatives, appointing Monroe J.
Carell, Jr. as each Selling Shareholder's attorney-in-fact (the
"Attorney-in-Fact") and appointing the Company as custodian (the
"Custodian"). The Attorney-in-Fact is authorized to execute, deliver,
and perform this Agreement on behalf of such Selling Shareholder, to
deliver the Shares to be sold by such Selling Shareholder hereunder,
to accept payment therefor, and otherwise to act on behalf of such
Selling Shareholder in connection with this Agreement. Certificates,
in suitable form for transfer by delivery or accompanied by duly
executed instruments of transfer or assignment in blank, representing
the Shares to be sold by such Selling Shareholder hereunder have been
deposited with the Custodian pursuant to the Custody Agreement for the
purpose of delivery
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pursuant to this Agreement. Such Selling Shareholder agrees
that the shares of Common Stock represented by the certificates on
deposit with the Custodian are subject to the interest of the
Underwriters hereunder, that the arrangements made for such custody
and the appointment of the Attorney-in-Fact are to that extent
irrevocable, and that the obligations of such Selling Shareholder
hereunder shall not be terminated except as provided in this Agreement
and the Custody Agreement. If such Selling Shareholder should die or
become incapacitated or if any other event should occur, before the
delivery of the Shares of such Selling Shareholder hereunder, the
certificates for such Shares deposited with the Custodian shall be
delivered by the Custodian in accordance with the terms and conditions
of this Agreement as if such death, incapacity, or other event had not
occurred, regardless whether the Custodian or the Attorney- in-Fact
shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly
authorized Attorney-in-Fact, has duly executed and delivered this
Agreement and the Custody Agreement and Power of Attorney; this
Agreement constitutes a legal, valid, and binding obligation of such
Selling Shareholder, all authorizations and consents necessary for the
execution and delivery of this Agreement and the Custody Agreement and
Power of Attorney on behalf of such Selling Shareholder and for the
sale and delivery of the Shares to be sold by such Selling Shareholder
hereunder have been given, except as may be required by the Securities
Act or state securities laws; and such Selling Shareholder has the
legal capacity and full right, power, and authority to execute this
Agreement and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody
Agreement and Power of Attorney and the consummation of the
transactions contemplated hereby and thereby by such Selling
Shareholder will not result in a breach or violation of, or conflict
with, any of the terms of provisions of, or constitute a default by
such Selling Shareholder under, any indenture, mortgage, deed of
trust, trust (constructive or other), loan agreement, lease,
franchise, license, or other agreement or instrument to which such
Selling Shareholder or any of his or its properties is bound, or any
statute, judgment, decree, order, rule, or regulation of any court or
governmental agency or body applicable to such Selling Shareholder or
any of his or its properties.
(e) Such Selling Shareholder has not distributed nor,
other than as permitted by the Securities Act and the Rules and
Regulations, will distribute any prospectus or other offering material
in connection with the offer and sale of the Shares other than any
Preliminary Prospectus filed with the Commission or the Final
Prospectus or other material permitted by the Securities Act.
(f) For a period of 180 days from the effective date of
the Registration Statement, such Selling Shareholder will not,
directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of any shares of Common Stock, other
than to the
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Underwriters pursuant to this Agreement, without the prior
written consent of the Representatives.
(g) To the knowledge of such Selling Shareholder, the
representations and warranties of the Company contained in Section 1
of this Agreement are true and correct; such Selling Shareholder has
reviewed and is familiar with the Registration Statement as originally
filed with the Commission and the Preliminary Prospectus contained
therein. The Preliminary Prospectus does not include an untrue
statement of a material fact regarding each Selling Shareholder or
omit to state a material fact regarding each Selling Shareholder
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; such Selling
Shareholder is not prompted to sell the Shares to be sold by such
Selling Shareholder's knowledge of any material non-public information
concerning the Company or any of its subsidiaries.
(h) At the time the Registration Statement becomes
effective (i) such parts of the Registration Statement and any
amendments and supplements thereto as specifically refer to such
Selling Shareholder will not 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, and (ii) such
parts of the Effective Prospectus and Final Prospectus as specifically
refer to such Selling Shareholder will not include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(i) No approval, consent, order, authorization,
designation, declaration, or filing by or with any regulatory body,
administrative or other governmental body is necessary in connection
with the execution and delivery of this Agreement by such Selling
Shareholder, and the consummation by him of the transactions herein
contemplated (other than as required by the Securities Act, state
securities laws and the NASD).
(j) Any certificates signed by or on behalf of such
Selling Shareholder as such and delivered to the Representatives or to
counsel for the Representatives shall be deemed a representation and
warranty by such Selling Shareholder to each Underwriter as to the
matters covered thereby.
(k) In order to document the Underwriters' compliance
with the reporting and withholding provisions of the Tax Equity and
Fiscal Responsibility Act of 1982 with respect to the transactions
herein contemplated, such Selling Shareholder agrees to deliver to you
prior to or at the First Closing Date (as hereinafter defined) a
properly completed and executed United States Treasury Department Form
W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
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(l) Such Selling Shareholder will not take, directly or
indirectly, any action designed to cause or result in, or which might
constitute or be expected to constitute, stabilization or manipulation
of the price of the Common Stock.
3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company and the Selling
Shareholders agree, as provided in the introductory paragraph, to sell
to each of the Underwriters, and each of the Underwriters, severally
and not jointly, agrees to purchase at a purchase price of
$___________ per share, the number of Firm Shares set forth opposite
such Underwriter's name in Schedule II hereto, plus such additional
number of Firm Shares which such Underwriter may become obligated to
purchase pursuant to Section 9 hereof. Each of the Underwriters
agrees that the "Price to Public" set forth on the cover page of the
Final Prospectus will be $___________ per share.
(b) The Company also grants to the Underwriters an option
to purchase, solely for the purpose of covering over-allotments in the
sale of Firm Shares, all or any portion of the Option Shares at the
purchase price per share set forth above. The option granted hereby
may be exercised as to all or any part of the Option Shares at any
time (but only once) within 30 days after the date the Registration
Statement becomes effective. The Underwriters shall not be under any
obligation to purchase any Option Shares prior to the exercise of such
option. The option granted hereby may be exercised by the
Underwriters by the Representatives giving written notice to the
Company setting forth the number of Option Shares to be purchased and
the date and time for delivery of and payment for such Option Shares
and stating that the Option Shares referred to therein are to be used
for the purpose of covering over-allotments in connection with the
distribution and sale of the Firm Shares. If such notice is given
prior to the First Closing Date (as defined herein), the date set
forth therein for such delivery and payment shall not be earlier than
two full business days thereafter or the First Closing Date, whichever
occurs later. If such notice is given on or after the First Closing
Date, the date set forth therein for such delivery and payment shall
not be earlier than three full business days thereafter. In either
event, the date so set forth shall not be more than 15 full business
days after the date of such notice. The date and time set forth in
such notice is herein called the "Option Closing Date." Upon exercise
of the option, the Company shall become obligated to sell to the
Underwriters, and, subject to the terms and conditions herein set
forth, the Underwriters shall become obligated to purchase, for the
account of each Underwriter, from the Company, severally and not
jointly, the number of Option Shares specified in such notice. Option
Shares shall be purchased for the accounts of the Underwriters in
proportion to the number of Firm Shares set forth opposite such
Underwriter's name in respective purchase obligations of each
Underwriter shall be adjusted so that no Underwriter shall be
obligated to purchase fractional Option Shares.
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(c) Certificates in definitive form for the Firm Shares
which each Underwriter has agreed to purchase hereunder shall be
delivered by or on behalf of the Company and the Selling Shareholders
to the Underwriters for the account of such Underwriter against
payment by such Underwriter or on its behalf of the purchase
price therefor by certified, official bank or New York Clearing House
funds check payable in next day funds to the order of the Company and
the custodian for the Selling Shareholders at the offices of X.X.
Xxxxxxxx & Co. ("Bradford"), 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000, or at such other place as may be agreed upon by Bradford and
the Company, at 10:00 A.M., Nashville time, on the third full business
day after this Agreement becomes effective, or at such other time not
later than the seventh full business day thereafter as the
Representatives and the Company may determine, such time of delivery
against payment being herein referred to as the "First Closing Date."
The First Closing Date and the Option Closing Date are herein
individually referred to as the "Closing Date" and collectively
referred to as the "Closing Dates." Certificates in definitive form
for the Option Shares which each Underwriter shall have agreed to
purchase hereunder shall be similarly delivered by or on behalf of the
Company and the custodian for the Selling Shareholders on the Option
Closing Date. The certificates in definitive form for the Shares to
be delivered will be in good delivery form and in such denominations
and registered in such names as Xxxxxxxx xxx request not less than 48
hours prior to the First Closing Date or the Option Closing Date, as
the case may be. Such certificates will be made available for
checking and packaging at a location in New York, New York as may be
designated by the Representatives, at least 24 hours prior to the
First Closing Date or the Option Closing Date, as the case may be. It
is understood that the Representatives may (but shall not be obligated
to) make payment on behalf of any Underwriter or Underwriters for the
Shares to be purchased by such Underwriter or Underwriters. No such
payment shall relieve such Underwriter or Underwriters from any of its
or their obligations hereunder.
4. Offering by the Underwriters. After the Registration
Statement becomes effective, the several Underwriters propose to offer for sale
to the public the Firm Shares and any Option Shares that may be sold at the
price and upon the terms set forth in the Final Prospectus.
5. Covenants of the Company. The Company covenants and agrees
with each of the Underwriters that:
(a) The Company shall comply with the provisions of and
make all requisite filings with the Commission pursuant to Rules 424,
430A, and 434 of the Rules and Regulations and to notify you promptly
(in writing, if requested) of all such filings. The Company shall
notify you promptly of any request by the Commission for any amendment
of or supplement to the Registration Statement, the Effective
Prospectus, or the Final Prospectus or for additional information; the
Company shall prepare and file with the Commission, promptly upon your
request, any amendments of or supplements to the Registration
Statement, the Effective Prospectus, or the Final Prospectus which, in
your opinion, based on the advice of your legal counsel, may be
necessary or advisable in
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connection with the distribution of the Shares; and the Company
shall not file any amendment of or supplement to the Registration
Statement, the Effective Prospectus or the Final Prospectus which is
not approved by you after reasonable notice thereof. The Company
shall advise you promptly of the issuance by the Commission or any
jurisdiction or other regulatory body of any stop order or other order
suspending the effectiveness of the Registration Statement, suspending
or preventing the use of any Preliminary Prospectus, the Effective
Prospectus, or the Final Prospectus or suspending the qualification of
the Shares for offering or sale in any jurisdiction, or of the
institution of any proceedings for any such purpose; and the Company
shall use its best efforts to prevent the issuance of any stop order
or other such order and, should a stop order or other such order be
issued, to obtain as soon as possible the lifting thereof.
(b) The Company will take or cause to be taken, in
cooperation with the Representatives and counsel to the Underwriters,
all necessary action and furnish to whomever you direct such
information as may be reasonably required in qualifying the Shares for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriters may designate and will continue such
qualifications in effect for as long as may be reasonably necessary to
complete the distribution of the Shares. The foregoing
notwithstanding, the Company shall not be required to qualify as a
foreign corporation or to take any action which would subject it to
general service of process in any jurisdiction where it is not
presently qualified or where it would be subject to taxation as a
foreign corporation.
(c) Within the time during which a Final Prospectus
relating to the Shares is required to be delivered under the
Securities Act, the Company shall comply with all requirements imposed
upon it by the Securities Act, as now and hereafter amended, and by
the Rules and Regulations, as from time to time in force, so far as is
necessary to permit the continuance of sales of or dealings in the
Shares as contemplated by the provisions hereof and the Final
Prospectus. If during such period any event occurs as a result of
which the Final Prospectus as then amended or supplemented would
include 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 then existing, not misleading, or if during such
period it is necessary to amend the Registration Statement or
supplement the Final Prospectus to comply with the Securities Act, the
Company shall promptly notify you and shall amend the Registration
Statement or supplement the Final Prospectus (at the expense of the
Company) so as to correct such statement or omission or effect such
compliance.
(d) The Company will furnish without charge to the
Representatives and make available to the Underwriters copies of the
Registration Statement (four of which shall be signed and shall be
accompanied by all exhibits, including any that are incorporated by
reference, which have not previously been furnished), each Preliminary
Prospectus, the Effective Prospectus and the Final Prospectus, and all
amendments and supplements thereto, including any prospectus or
supplement prepared after the effective date of the Registration
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Statement, in each case as soon as available and in such quantities as
the Underwriters may reasonably request.
(e) The Company will (i) deliver to you at such office or
offices as you may designate as many copies of the Preliminary
Prospectus and Final Prospectus as you may reasonably request, and
(ii) for a period of not more than nine months after the Registration
Statement becomes effective, send to the Underwriters as many
additional copies of the Final Prospectus and any supplement thereto
as you may reasonably request.
(f) The Company shall make generally available to its
security holders, in the manner contemplated by Rule 158(b) under the
Securities Act, as promptly as practicable and in any event no later
than 45 days after the end of its fiscal quarter in which the first
anniversary of the effective date of the Registration Statement
occurs, an earnings statement satisfying the provisions of Section
11(a) of the Securities Act covering a period of at least 12
consecutive months beginning after the effective date of the
Registration Statement.
(g) The Company will apply the net proceeds from the sale
of the Shares as set forth under the caption "Use of Proceeds" in the
Final Prospectus.
(h) During a period of five years from the effective date
of the Registration Statement, the Company will furnish to the
Representatives copies of all reports and other communications
(financial or other) furnished by the Company to its shareholders and,
as soon as available, copies of any reports or financial statements
furnished or filed by the Company to or with the Commission or any
national securities exchange on which any class of securities of the
Company may be listed.
(i) The Company will, from time to time, after the
effective date of the Registration Statement file with the Commission
such reports as are required by the Securities Act, the Exchange Act,
and the Rules and Regulations, and shall also file with state
securities commissions in states where the Shares have been sold by
you (as you shall have advised us in writing) such reports as are
required to be filed by the securities acts and the regulations of
those states.
(j) Except pursuant to this Agreement or with the prior
written consent of the Representatives, for a period of 180 days from
the effective date of the Registration Statement, the Company will
not, and the Company has provided agreements executed by each of its
executive officers and directors and all other beneficial owners of
the Company's outstanding Common Stock providing that for a period of
180 days from the effective date of the Registration Statement, such
person or entity will not, directly or indirectly, offer for sale,
sell, grant any options (other than pursuant to existing employee
benefit plans and agreements, other existing compensation agreements,
and existing stock options), rights or warrants with respect to any
shares of Common Stock, securities convertible into Common
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Stock or any other capital stock of the Company, or otherwise dispose
of any shares of Common Stock or such other securities or capital
stock.
(k) The Company will not take, directly or indirectly,
any action designed to cause or result in, or which might constitute
or be expected to constitute, stabilization or manipulation of the
price of the Common Stock.
6. Expenses. The Company and each of the Selling Shareholders
agree with the Underwriters that (a) whether or not the transactions
contemplated by this Agreement are consummated or this Agreement becomes
effective or is terminated, the Company and the Selling Shareholders will pay
all fees and expenses incident to the performance of the obligations of the
Company and the Selling Shareholders hereunder, including, but not limited to,
(i) the Commission's registration fee, (ii) the expenses of printing (or
reproduction) and distributing the Registration Statement (including the
financial statements therein and all amendments and exhibits thereto), each
Preliminary Prospectus, the Effective Prospectus, the Final Prospectus, any
amendments or supplements thereto, and this Agreement and other underwriting
documents, including Underwriters' Questionnaires, Underwriters' Powers of
Attorney, Blue Sky Memoranda and Agreements Among Underwriters, (iii) fees and
expenses of accountants and counsel for the Company and the Selling
Shareholders, (iv) expenses of registration or qualification of the Shares
under state Blue Sky and securities laws, including the fees and disbursements
of counsel to the Underwriters in connection therewith, (v) filing fees paid or
incurred by the Underwriters and related fees and expenses of counsel to the
Underwriters in connection with filings with the NASD, (vi) expenses of
including the Shares for listing on The New York Stock Exchange, (vii) all
travel, lodging and reasonable living expenses incurred by the Company in
connection with marketing, dealer and other meetings attended by the Company
and the Underwriters in marketing the Shares, (viii) the costs and charges of
the Company's transfer agent and registrar and the cost of preparing the
certificates for the Shares, and (ix) all other costs and expenses incident to
the performance of their obligations hereunder not otherwise provided for in
this Section; and (b) all out-of-pocket expenses, including counsel fees,
disbursements and expenses, incurred by the Underwriters in connection with
investigating, preparing to market and marketing the Shares and proposing to
purchase and purchasing the Shares under this Agreement, will be borne and paid
by the Company and the Selling Shareholders if the sale of the Shares provided
for herein is not consummated for any reason. The provisions of this Section
shall not affect any agreement that the Company and the Selling Shareholders
may have for the sharing of such costs and expenses; provided, however, the
Underwriters may deem the Company to be the primary obligor with respect to all
costs, fees, and expenses to be paid hereunder by the Company and the Selling
Shareholders. Neither the Company nor the Selling Shareholders shall in any
event be liable to any of the Underwriters for the loss of anticipated profits
from the transactions covered by this Agreement.
7. Conditions of the Underwriters' Obligations. The respective
obligations of the Underwriters to purchase and pay for the Firm Shares and
Option Shares, shall be subject, in their reasonable discretion, to the
accuracy of the representations and warranties of the Company and the Selling
Shareholders herein as of the date hereof and as of the Closing Date as if made
on and as of
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the Closing Date, to the accuracy of the statements of the Company's officers
made pursuant to the provisions hereof, to the performance by the Company and
the Selling Shareholders of all of their covenants and agreements hereunder,
and to the following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective not later than 5:30
P.M., Washington, D.C. time, on the day following the date of this
Agreement, or such later time and date as shall have been consented to
by the Representatives and all filings required by Rules 424, 430A,
and 434 of the Rules and Regulations shall have been made; no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have
been instituted or threatened or, to the knowledge of the Company or
the Underwriters, shall be contemplated by the Commission; any request
of the Commission for additional information (to be included in the
Registration Statement or the Final Prospectus or otherwise) shall
have been complied with to your satisfaction; and the NASD, upon
review of the terms of the public offering of the Shares, shall not
have objected to such offering, such terms or the Underwriters'
participation in the same.
(b) No Underwriter shall have advised the Company that
the Registration Statement, Preliminary Prospectus, the Effective
Prospectus, or the Final Prospectus, or any amendment or any
supplement thereto, contains an untrue statement of fact which, in
your judgment, is material, or omits to state a fact which, in your
judgment, is material and is required to be stated therein or
necessary to make the statements therein not misleading and the
Company shall not have cured such untrue statement of fact or stated a
statement of fact required to be stated therein.
(c) The Representatives shall have received an opinion,
dated the Closing Date, from:
(i) Xxxxxxx Xxxxxx Xxxx Xxxxxxx & Manner, P.C.,
counsel for the Company and the Selling Shareholders, to the effect
that:
(A) The Company has been duly organized and
is validly existing in good standing as a corporation under
the laws of the State of Tennessee, with corporate power and
authority to own its properties and conduct its business as
now conducted.
(B) Each of the Company's subsidiaries that
are "significant" as such term is defined in Regulation S-X
promulgated by the Commission has been duly organized and is
validly existing under the laws of its jurisdiction of
incorporation or organization, as applicable, with the
corporate or partnership power and authority to own its
properties and conduct its business as now conducted. The
issued and outstanding shares of capital stock of the
Company's corporate subsidiaries have been duly and validly
authorized and issued, are fully paid and nonassessable, and
are
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owned beneficially and of record by the Company in the amounts
set forth on Exhibit 1(f) hereto free and clear of liens,
claims, encumbrances, security interests, voting trusts
or other defects of title whatsoever. All interests in
partnership subsidiaries of the Company are owned beneficially
and of record in the percentages set forth on Exhibit 1(f)
hereto and, to such counsel's knowledge, are owned free and
clear of liens, claims, encumbrances, security interests, or
other defects of title whatsoever.
(C) As of the dates specified therein, the
Company had authorized and issued capital stock as set forth
under the caption "Capitalization" in the Final Prospectus.
All of the outstanding shares of the capital stock of the
Company have been duly authorized and are validly issued,
fully paid and nonassessable, and the Shares have been
duly authorized, and upon issuance thereof and payment
therefor as provided herein, will be validly issued, fully
paid and nonassessable; none of the issued shares have been
issued in violation of or subject to any preemptive rights
provided for by law or by the Company's Amended and Restated
Charter. There are no preemptive rights or other rights to
subscribe for or to purchase, or any restriction upon the
transfer of, the Shares pursuant to the Company's Amended and
Restated Charter, bylaws or other governing documents or, to
such counsel's knowledge, any agreement or other instrument to
which the Company is a party or by which it may be bound
except as described in the Effective Prospectus and Final
Prospectus and except for restrictions on transfer imposed
under applicable securities laws. To such counsel's
knowledge, neither the filing of the Registration Statement
nor the offer or sale of the Shares as contemplated by this
Agreement gives rise to any rights for or relating to the
registration of any shares of Common Stock or any other
securities of the Company. The Underwriters will receive good
and marketable title to the Shares to be issued and delivered
by the Company pursuant to this Agreement, free and clear of
all liens, encumbrances, claims, security interests,
restrictions, shareholders agreements and voting trusts
whatsoever. The capital stock of the Company and the Shares
conform to the description thereof contained in the Final
Prospectus.
(D) No consent, approval, authorization, or
order of any court or governmental agency or body or, to such
counsel's knowledge, any third party is required for the
performance of this Agreement by the Company or the
consummation by the Company of the transactions contemplated
hereby, except such as have been obtained under the Securities
Act and such as may be required by the NASD and under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the several Underwriters.
The performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated
hereby will not conflict with or result in a breach or
violation by the Company of any of the terms or provisions of,
or constitute a default by the Company under, any indenture,
mortgage, deed of trust, loan agreement, lease or other
agreement or instrument known to such counsel to which the
Company is a party or to which the Company or its properties
is subject and which is material to
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the Company, the Amended and Restated Charter or bylaws
of the Company, any statute, or any judgment, decree, order,
rule or regulation known to such counsel of any court or
governmental agency or body applicable to the Company or its
properties.
(E) The Company has full legal right, power
and authority to enter into this Agreement and to issue, sell
and deliver the Shares to be sold by it to the Underwriters as
provided herein, and this Agreement has been duly authorized,
executed, and delivered by the Company and constitutes the
valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms,
except as enforceability may be limited by general equitable
principles, bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, fraudulent conveyance or
other laws affecting creditors' rights generally, and except
as rights to indemnify may be limited by federal or state
securities laws or the public policy underlying such laws.
(F) The Registration Statement and all
post-effective amendments thereto have become effective under
the Securities Act, and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are threatened, pending,
or contemplated by the Commission. All filings required by
Rules 424, 430A, and 434 of the Rules and Regulations have
been made; the Registration Statement, the Effective
Prospectus, and the Final Prospectus, and any amendments or
supplements thereto, and the documents incorporated by
reference therein (except for the financial statements and
schedules included or incorporated by reference therein as to
which such counsel need express no opinion), as of their
respective effective or issue dates, complied as to form in
all material respects with the requirements of the Securities
Act and the Rules and Regulations; the descriptions in the
Registration Statement, the Effective Prospectus and the Final
Prospectus of statutes, regulations, legal and governmental
proceedings, and contracts and other documents are accurate in
all material respects and present fairly the information
required to be stated; and there are no pending or (to the
best knowledge of such counsel) threatened legal or
governmental proceedings, statutes or regulations required to
be described in the Final Prospectus which are not described
as required nor of any contracts or documents known to such
counsel of a character required to be described in the
Registration Statement or the Final Prospectus or to be filed
as exhibits to the Registration Statement which are not
described and filed as required.
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(G) The Company is not, and will not be
as a result of the consummation of the transactions
contemplated by this Agreement, an "investment company" within
the meaning of the Investment Company Act of 1940.
(H) This Agreement and the Custody
Agreement and Power of Attorney have been duly executed
and delivered by or on behalf of each of the Selling
Shareholders and constitute valid and binding agreements of
such Selling Shareholders in accordance with their terms,
except as enforceability may be limited by applicable
equitable principles or by bankruptcy, insolvency, moratorium,
reorganization or similar laws from time to time in effect
affecting the enforcement of creditors' rights, and except as
rights to indemnify may be limited by federal or state
securities laws or the public policy underlying such laws.
(I) The sale of the Shares to be sold by
each Selling Shareholder hereunder and the compliance
by such Selling Shareholder with all of the provisions of
this Agreement, the Custody Agreement and the Power of
Attorney and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach or violation of any terms or provisions of, or
constitute a default under any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument
known to such counsel to which such Selling Shareholder is a
party or by which such Selling Shareholder is bound or to
which any of the property or assets of such Selling
Shareholder is subject, or any statute, order, rule or
regulation of any court or governmental agency or body known
to such counsel to be applicable to such Selling Shareholder
or the property of such Selling Shareholder.
(J) No consent, approval, authorization or
order of any court or governmental agency or body is required
for the consummation of the transactions contemplated by this
Agreement in connection with the Shares to be sold by each
Selling Shareholder hereunder, except which have been duly
obtained and in full force and effect, such as have been
obtained under the Securities Act and such as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of such Shares by the Underwriters,
as to which such counsel need express no opinion.
(K) Each of the Selling Shareholders has
the full right, power and authority to sell, transfer
and deliver such Shares pursuant to this Agreement. By
delivery of a certificate or certificates therefor, the
Selling Shareholders will transfer to the Underwriters valid
and marketable title to such shares, free and clear of any
pledge, lien, security interest, charge, claim, equity, or
encumbrance of any kind.
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In addition to the matters set forth above, such opinion shall also
include a statement to the effect that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company,
representatives of the Underwriters and their counsel at which the contents of
the Registration Statement, the Effective Prospectus and the Final Prospectus
and related matters were discussed and, although such counsel is not passing on
and does not assume any responsibility for the accuracy, completeness or
fairness contained in the Registration Statement, the Effective Prospectus or
the Final Prospectus, that nothing has come to the attention of such counsel
which leads them to believe that the Registration Statement, the Effective
Prospectus and the Final Prospectus or any amendment or supplement thereto, or
any document incorporated by reference therein, contains an untrue statement of
a material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading (except that such
counsel need express no view as to financial statements, schedules and other
financial information included therein). In rendering such opinion, counsel
may rely as to matters of fact, to the extent counsel deems proper, on
certificates of responsible officers of the Company and public officials.
(ii) Xxxxx X. Xxxxxx, Vice President, General
Counsel and Secretary of the Company, to the effect that:
(A) The Company is duly qualified to do business as
a foreign corporation in good standing in all jurisdictions
where the failure to so qualify would have a material adverse
effect upon the Company and its subsidiaries, taken as a
whole. The Company holds all licenses, certificates, permits,
franchises and authorizations from governmental authorities
that are material to the conduct of its business in all
locations in which such business is currently being conducted.
(B) Each of the Company's subsidiaries is
duly qualified to do business in all jurisdictions where the
failure to so qualify would have a material adverse effect
upon the Company and its subsidiaries, taken as a whole. Each
subsidiary holds all licenses, certificates, permits,
franchises and authorizations from governmental authorities
that are material to the conduct of its business in all
locations in which such business is currently conducted.
(C) Except as described in the Final
Prospectus, there is not pending, or to the best knowledge of
such counsel threatened, any action, suit, proceeding, inquiry
or investigation, to which the Company is a party, or to which
the property of the Company is subject, before or brought by
any court or governmental agency or body, which, if determined
adversely to the Company, could result in any material adverse
change in the business, financial position, net worth or
results of operations, or could materially adversely affect
the properties or assets, of the Company.
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(D) To the best knowledge of such counsel, no
default exists, and no event has occurred which with notice or
after the lapse of time to cure or both, would constitute a
default, in the due performance and observance of any term,
covenant or condition of any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument
to which the Company is a party or to which it or its
properties is subject and which is material to the Company, or
of the Amended and Restated Charter or bylaws of the Company.
(E) To the best knowledge of such counsel,
the Company is not in violation of any law, ordinance,
administrative or governmental rule or regulation applicable
to the Company and material to the Company or any decree of
any court or governmental agency or body having jurisdiction
over the Company.
(F) All offers and sales of the Company's
securities prior to the date hereof were at all relevant times
duly registered or exempt from the registration requirements
of the Securities Act and were duly registered or the subject
of an exemption from the registration requirements of
applicable state securities or Blue Sky laws.
(d) The Underwriters shall have received an opinion or
opinions, dated the Closing Date, of Bass, Xxxxx & Xxxx, counsel for
the Underwriters, with respect to the Registration
Statement and the Final Prospectus, and such other related matters as
the Underwriters may require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received from KPMG
Peat Marwick LLP, a letter dated the date hereof and, at the Closing
Date, a second letter dated the Closing Date, in form and substance
satisfactory to the Representatives, stating that they are independent
public accountants with respect to the Company within the meaning of
the Securities Act and the applicable Rules and Regulations, and to
the effect that:
(i) In their opinion, the financial
statements audited by them and incorporated by reference in
the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the published Rules and Regulations and are
presented in accordance with generally accepted accounting
principles;
(ii) Based upon a review in accordance with
standards established by the American Institute of Certified
Public Accountants (including those described in Statement on
Auditing Standards No. 71) of the Company's interim financial
statements for the fiscal quarters ended December 31, 1996 and
1995 that are incorporated by reference in the Registration
Statement, nothing has come to their
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attention that causes them to believe that the unaudited
interim financial statements of the Company do not comply as
to form in all material respects with the applicable
accounting requirements of the Securities Act and the Rules
and Regulations, or are not presented in accordance with
generally accepted accounting principles on a basis
substantially consistent with that of the audited financial
statements incorporated by reference in the Registration
Statement;
(iii) The selected financial information
included in the Effective Prospectus and the Final Prospectus
under the captions "PROSPECTUS SUMMARY" and "SELECTED
CONSOLIDATED FINANCIAL AND OTHER DATA" for each of the fiscal
years ended September 30, 1994, 1995, and 1996 agrees with
the corresponding amounts in the audited consolidated
financial statements of the Company incorporated by reference
in the Registration Statement or previously reported on by
them;
(iv) On the basis of a reading of the latest
available interim consolidated financial statements
(unaudited) of the Company, a reading of the minute books of
the Company, inquiries of officials of the Company responsible
for financial and accounting matters and other specified
procedures, all of which have been agreed to by the
Representatives, nothing came to their attention that caused
them to believe that:
(A) any unaudited financial statement
data included or incorporated by reference in
the Effective Prospectus and Final Prospectus does
not agree with the corresponding items in the
unaudited financial statements from which such data
was derived and such unaudited data was not
determined on a basis substantially consistent with
the basis for the corresponding amounts in the
audited financial statements incorporated by
reference in the Effective Prospectus and the Final
Prospectus;
(B) At a specified date not more than
five days prior to the date of delivery of such
respective letter, there was any change in the
capital stock, decline in shareholders' equity or
increase in long-term debt and capital lease
obligations of the Company, in each case as compared
with amounts shown in the latest consolidated balance
sheet incorporated by reference in the Final
Prospectus, except in each case for changes,
decreases, or increases which the Final Prospectus
discloses have occurred or may occur or which are
described in such letters; and
(C) For the period from the closing
date of the latest consolidated statements of
earnings incorporated by reference in the Effective
Prospectus and the Final Prospectus to a specified
date not more than five days prior to the date of
delivery of such respective letter, there were any
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decreases in total revenues or net earnings in each
case as compared with the corresponding period of the
preceding year, except in each case for decreases
which the Final Prospectus discloses have occurred or
may occur or which are described in such letter.
(v) They have reviewed the unaudited pro
forma financial statements included or incorporated by
reference in the Effective Prospectus and Final Prospectus and
nothing has come to their attention that causes them to
believe that such unaudited pro forma financial statements do
not comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of
Registration S-X or that any pro forma adjustments have not
been properly applied to the historical amounts.
(vi) They have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages, and financial information specified by
you which are derived from the general accounting records of
the Company, which appear in the Effective Prospectus and the
Final Prospectus, and have compared and agreed such amounts,
percentages, and financial information with the accounting
records of the Company or to analyses and schedules prepared
by the Company from its detailed accounting records.
In the event that the letters to be delivered referred to above set forth any
such changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that the Underwriters shall have determined,
after discussions with officers of the Company responsible for financial and
accounting matters and with KPMG Peat Marwick LLP, that such changes, decreases
or increases as are set forth in such letters do not reflecta material adverse
change in the shareholders' equity or long-term debt of the Company as compared
with the amounts shown in the latest consolidated balance sheets of the Company
included in the Final Prospectus, or a material adverse change in total net
revenues or net earnings of the Company, in each case as compared with the
corresponding period of the prior year.
(f) There shall have been furnished to the Representatives a
certificate, dated the Closing Date and addressed to you, signed by the Chief
Executive Officer and by the Chief Financial Officer of the Company to the
effect that:
(i) the representations and warranties of the
Company in Section 1 of this Agreement are true and correct,
as if made at and as of the Closing Date, and the Company has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the
effectiveness of the Registration Statement has been issued,
and no proceedings for that purpose have been initiated or are
pending, or to their knowledge, threatened under the
Securities Act;
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(iii) they have carefully examined the
Registration Statement, the Effective Prospectus and the Final
Prospectus, and any amendments or supplements thereto, and
such documents do not include any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading; and
(iv) since the effective date of the
Registration Statement, there has occurred no event (other
than with respect to the information contained under the
caption "Underwriting") required to be set forth in an
amendment or supplement to the Registration Statement, the
Effective Prospectus or the Final Prospectus which has not
been so set forth.
(g) The representations and warranties of each Selling
Shareholder in Section 2 of this Agreement shall be true and correct
as of the Closing Date and such Selling Shareholders shall deliver to
the Representatives a certificate to that effect, dated the Closing
Date, signed by such Selling Shareholder or his or its duly appointed
attorney-in-fact.
(h) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, and except as stated therein, the Company has not
sustained any material loss or interference with its business or
properties from fire, flood, hurricane, earthquake, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any court or governmental action, order or decree, or
become a party to or the subject of any litigation which is material
to the Company, nor shall there have been any material adverse change,
or any development involving a prospective material adverse change, in
the business, properties, key personnel, capitalization, net worth,
results of operations or condition (financial or other) of the
Company, which loss, interference, litigation or change, in your
judgment shall render it unadvisable to commence or continue the
offering of the Shares at the offering price to the public set forth
on the cover page of the Prospectus or to proceed with the delivery of
the Shares.
(i) The Shares have been approved for listing on The New
York Stock Exchange, upon official notice of issuance.
All such opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are reasonably satisfactory to the Representatives and their counsel. The
Company shall furnish to the Representatives such conformed copies of such
opinions, certificates, letters and documents in such quantities as the
Representatives shall reasonably request.
The respective obligations of the Underwriters to purchase and pay for
the Option Shares shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Shares,
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except that all references to the "Closing Date" shall be deemed to refer to
the Option Closing Date, if it shall be a date other than the Closing Date.
8. Indemnification and Contribution.
(a) The Company and each of the Selling Shareholders,
severally and not jointly, agree to indemnify and hold harmless each
Underwriter, and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or
controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based in whole or in
part upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Effective Prospectus or Final Prospectus, or any
amendment or supplement thereto, or in any Blue Sky application or
other written information furnished by the Company filed in any state
or other jurisdiction in order to qualify any or all of the Shares
under the securities laws thereof (a "Blue Sky Application") or arise
out of or are based upon the omission or alleged omission to state in
the Registration Statement, any Preliminary Prospectus, the Effective
Prospectus or Final Prospectus or any amendment or supplement thereto
or any Blue Sky Application a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter and each such controlling person
for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the
Company and the Selling Shareholders will not be liable in any such
case to the extent that any such loss, claim, damage, or liability
arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration
Statement, the Preliminary Prospectus, the Effective Prospectus or
Final Prospectus or such amendment or such supplement or any Blue Sky
Application in reliance upon and in conformity with written
information furnished to the Company by any Underwriter specifically
for use therein (it being understood that the only information so
provided by the Underwriters is the information included in the last
paragraph on the cover page and in the first, third and fourth
paragraphs under the caption "Underwriting" in any Preliminary
Prospectus and the Final Prospectus and the Effective Prospectus).
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless each of the Selling Shareholders and the
Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the
Company within the meaning of the Securities Act against any losses,
claims, damages or liabilities to which the Selling Shareholders or
Company or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the
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Registration Statement, any Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or supplement
thereto, or any Blue Sky Application, or arise out of or are based
upon the omission or the alleged omission to state in the Registration
Statement, any Preliminary Prospectus, the Effective Prospectus or
Final Prospectus or any amendment or supplement thereto or any Blue
Sky Application a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to
the Company by any Underwriter specifically for use therein (it being
understood that the only information so provided is the information
included in the last paragraph on the cover page and in the first,
third and fourth paragraphs under the caption "Underwriting" in any
Preliminary Prospectus and in the Effective Prospectus and the Final
Prospectus);
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action,
including governmental proceedings, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party
under this Section 8 notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 8. In case any such action is
brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein, and to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party; and after notice from the indemnifying party
to such indemnified party of its election to so assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with
the defense thereof other than reasonable costs of investigation
except that the indemnified party shall have the right to employ
separate counsel if, in its reasonable judgment, it is advisable for
the indemnified party and any other Underwriter to be represented by
separate counsel, and in that event the fees and expenses of separate
counsel shall be paid by the indemnifying party.
Neither the Company nor any of the Selling Shareholders will,
without prior written consent of each Representative, settle or
compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding (or related cause of
action or portion thereof) in respect of which indemnification may be
sought hereunder (whether or not such Underwriter is a party to such
claim, action, suit or proceeding), unless such settlement, compromise
or consent includes an unconditional release of such Underwriter from
all liability arising out of such claim, action, suit or proceeding
(or related cause of action or portion thereof).
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(d) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement
provided for in the preceding part of this Section 8 is for any reason
held to be unavailable to the Underwriters, the Company, or the
Selling Shareholders or is insufficient to hold harmless an
indemnified party, then the Company and the Selling Shareholders shall
contribute to the damages paid by the Underwriters, and the
Underwriters shall contribute to the damages paid by the Company and
the Selling Shareholders provided, however, that 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. In
determining the amount of contribution to which the respective parties
are entitled, there shall be considered the relative benefits received
by each party from the offering of the Shares (taking into account the
portion of the proceeds of the offering realized by each), the
parties' relative knowledge and access to information concerning the
matter with respect to which the claim was asserted, the opportunity
to correct and prevent any statement or omission, and any other
equitable considerations appropriate under the circumstances. The
Company, the Selling Shareholders and the Underwriters agree that it
would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose). No
Underwriter or person controlling such Underwriter shall be obligated
to make contribution hereunder which in the aggregate exceeds the
underwriting discount applicable to the Shares purchased by such
Underwriter under this Agreement, less the aggregate amount of any
damages which such Underwriter and its controlling persons have
otherwise been required to pay in respect of the same or any similar
claim. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and
not joint. For purposes of this Section, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act, shall have the same rights to contribution as the
Company.
9. Default of Underwriters. If any Underwriter defaults in its
obligation to purchase Shares hereunder and if the total number of Shares which
such defaulting Underwriter agreed but failed to purchase is ten percent or
less of the total number of Shares to be sold hereunder, the non-defaulting
Underwriters shall be obligated severally to purchase (in the respective
proportions which the number of Shares set forth opposite the name of each
non-defaulting Underwriter in Schedule II hereto bears to the total number of
Shares set forth opposite the names of all the non- defaulting Underwriters),
the Shares which such defaulting Underwriter or Underwriters agreed but failed
to purchase. If any Underwriter so defaults and the total number of Shares
with respect to which such default or defaults occur is more than ten percent
of the total number of Shares to be sold hereunder, and arrangements
satisfactory to the other Underwriters and the Company for the purchase of such
Shares by other persons (who may include the non-defaulting Underwriters) are
not made within 36 hours after such default, this Agreement, insofar as it
relates to the sale of the Shares, will terminate without liability on the part
of the non-defaulting Underwriters or the Company except for (i) the
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provisions of Section 8 hereof, and (ii) the expenses to be paid or reimbursed
by the Company pursuant to Section 6. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. Default by the Selling Shareholders. If the Selling
Shareholders shall fail to sell and deliver the number of Firm Shares or Option
Shares, as the case may be, that the Selling Shareholders are obligated to
sell, the Representatives may, at their option, by notice to the Company,
either (a) require the Company to sell and deliver such number of shares of
Common Stock as to which the Selling Shareholders have defaulted, or (b) elect
to purchase the Firm Shares and the Option Shares that the Company and the
non-defaulting Selling Shareholders have agreed to sell pursuant to this
Agreement. In the event of a default under this Section that does not result
in the termination of this Agreement, either the Representatives or the Company
shall have the right to postpone the First Closing Date or Option Closing Date
for a period not exceeding seven days in order to effect any required changes
in the Registration Statement or Prospectus or in any other documents or
arrangements. No action taken pursuant to this Section shall relieve the
Company or the Selling Shareholder so defaulting from liability, if any, in
respect of such default.
11. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Selling
Shareholders and the Company, its officers and the Underwriters set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, any of its officers or
directors, any Underwriter or any controlling person, and (ii) delivery of and
payment for the Shares. The respective agreements, covenants, indemnities
and other statements set forth in Section 6 and Section 8 hereof shall remain
in full force and effect, regardless of any termination or cancellation of this
Agreement.
12. Effective Date. This Agreement shall become effective at
whichever of the following times shall first occur: (i) at 11:30 A.M.,
Washington, D.C. time, on the next full business day following the date on
which the Registration Statement becomes effective or (ii) at such time after
the Registration Statement has become effective as the Representatives shall
release the Firm Shares for sale to the public; provided, however, that the
provisions of Sections 6, 8, 10 and 11 hereof shall at all times be effective.
For purposes of this Section 12, the Firm Shares shall be deemed to have been
so released upon the release by the Representatives for publication, at any
time after the Registration Statement has become effective, of any newspaper
advertisement relating to the Firm Shares or upon the release by the
Representatives of telegrams offering the Firm Shares for sale to securities
dealers, whichever may occur first.
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13. Termination.
(a) The Company's obligations under this Agreement may be
terminated by the Company by notice to the Representatives at any time
before it becomes effective in accordance with Section 12 hereof.
(b) This Agreement may be terminated by the
Representatives by notice to the Company (i) at any time before it
becomes effective in accordance with Section 12 hereof; (ii) in the
event that at or prior to the First Closing Date the Company or any
Selling Shareholder shall have failed, refused, or been unable to
perform any agreement on the part of the Company or such Selling
Shareholder to be performed hereunder or any other condition to the
obligations of the Underwriters hereunder is not fulfilled; (iii) if
at or prior to the Closing Date trading in securities on the New York
Stock Exchange, the American Stock Exchange, or the over- the-counter
market shall have been suspended or materially limited or minimum or
maximum prices shall have been established on either of such Exchanges
or such market, or a banking moratorium shall have been declared by
Federal or state authorities; (iv) if at or prior to the Closing Date
trading in securities of the Company shall have been suspended; or (v)
if there shall have been such a material change in general economic,
political or financial conditions or if the effect of international
conditions on the financial markets in the United States shall be such
as, in your reasonable judgment, makes it inadvisable to commence or
continue the offering of the Shares at the offering price to the
public set forth on the cover page of the Prospectus or to proceed
with the delivery of the Shares.
(c) Termination of this Agreement pursuant to this
Section 13 shall be without liability of any party to any other party
other than as provided in Sections 6 and 8 hereof.
14. Notices. All communications hereunder shall be in writing
and, if sent to any of the Underwriters, shall be mailed or delivered or
telegraphed and confirmed in writing to the Representatives in care of X.X.
Xxxxxxxx & Co., X.X. Xxxxxxxx Financial Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxxx, or if sent to the Company or
the Selling Shareholders shall be mailed, delivered or telegraphed and
confirmed in writing to the Company at 0000 00xx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Monroe J. Carell, Jr.
15. Miscellaneous. This Agreement shall inure to the benefit of
and be binding upon the several Underwriters, the Company, the Selling
Shareholders and their respective successors and legal representatives. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Company,
the Selling Shareholders and the several Underwriters and for the benefit of no
other person except that (i) the representations and warranties of the Company
and the Selling Shareholders contained in this Agreement shall also be for the
benefit of
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any person or persons who control any Underwriter within the meaning of Section
15 of the Securities Act, and (ii) the indemnities by the Underwriters shall
also be for the benefit of the directors of the Company, officers of the
Company who have signed the Registration Statement and any person or persons
who control the Company within the meaning of Section 15 of the Securities Act.
No purchaser of Shares from any Underwriter will be deemed a successor because
of such purchase. The validity and interpretation of this Agreement shall be
governed by the laws of the State of Tennessee. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. You hereby
represent and warrant to the Company and the Selling Shareholders that you have
authority to act hereunder on behalf of the several Underwriters, and any
action hereunder taken by you will be binding upon all the Underwriters.
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If the foregoing is in accordance with your understanding of our
agreement, please indicate your acceptance thereof in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
between the Company, each of the Selling Shareholders and each of the several
Underwriters.
Very truly yours,
CENTRAL PARKING CORPORATION
By:
---------------------------------------
Title:
---------------------------------
SELLING SHAREHOLDERS
By:
---------------------------------------
Attorney-in-Fact for each of the Selling
Shareholders listed in Schedule I hereto
Confirmed and accepted as of the
date first above written.
X.X. XXXXXXXX & CO., LLC
XXXXXXX XXXXX & COMPANY, LLC
EQUITABLE SECURITIES CORPORATION
For themselves and as Representatives
of the several Underwriters
X.X. XXXXXXXX & CO., LLC
By:
----------------------------------
Title:
----------------------------
XXXXXXX XXXXX & COMPANY, LLC
By:
----------------------------------
Title:
----------------------------
EQUITABLE SECURITIES CORPORATION
By:
----------------------------------
Title:
----------------------------
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SCHEDULE I
SELLING SHAREHOLDERS
Number of Firm
Name Shares to be Sold
------------------------------------------------------------------------------ -------------------------------------
Monroe J. Carell, Jr.
The Carell Children's Trust
Monroe Carell, Jr. 1994 Grantor Retained Annuity Trust
Monroe Carell, Jr. Foundation
Xxxxxxx Carell Xxxxx Foundation
Xxxxx Carell Xxxxxxx Foundation
Xxxxx Carell Xxxxxxx Foundation
Tennessee Botanical Gardens & Fine Arts, Inc.
-------------------------------------
TOTAL 800,000
=====================================
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SCHEDULE II
UNDERWRITERS
Number of Firm
Underwriter Shares to Be Purchased
---------------------------------------------------------------------- -----------------------------
X.X. Xxxxxxxx & Co., LLC . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxx Xxxxx & Company, LLC . . . . . . . . . . . . . . . . . . . .
Equitable Securities Corporation . . . . . . . . . . . . . . . . . .
-----------------------------
4,100,000
=============================
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