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Exhibit 1
CENTRAL PARKING CORPORATION
2,625,000 SHARES
OF
COMMON STOCK
UNDERWRITING AGREEMENT
March , 1998
▇.▇. ▇▇▇▇▇▇▇▇ & CO., LLC
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY, L.L.C.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
SUNTRUST EQUITABLE SECURITIES CORPORATION
As Representatives of the Several Underwriters
c/o ▇.▇. ▇▇▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇▇▇ Financial Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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"), 1,875,000 and 750,000 shares,
respectively, 2,625,000 of common stock, par value $.01 per share ("Common
Stock"), of the Company. The 2,625,000 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 262,500 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."
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1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each of the Underwriters that:
(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. 333-23869) 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
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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 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 Central Parking System Realty, Inc., Square
Industries, Inc., Diplomat Parking Corporation, Civic Parking, LLC and
▇▇▇▇▇▇ System Holding Corp. ("▇▇▇▇▇▇")) 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, except where the failure to be in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole, 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, 1997 is as
set forth under the caption "Capitalization" in the Effective Prospectus
and the Final Prospectus, and
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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 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
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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, 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, 1997, 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
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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, 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)
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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, 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
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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 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
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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.
(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 has not, directly or indirectly, solicited any offer
to buy or offer to sell, and will not, directly or indirectly, solicit any
offer to buy or offer to sell, in the United States or to any United States
citizen or resident, any security which is or would be integrated with the
offer and proposed sale of the convertible preferred securities to be
issued by a trust subsidiary of the Company and the convertible debentures
and guarantee related thereto to be issued by the Company (collectively,
the "Preferred Securities") in a manner that would require the offer or
sale of any of the Preferred Securities to be registered under the
Securities Act.
(x) Neither the Company nor any of its affiliates, as such term is
defined in Rule 405 under the Securities Act ("Affiliates"), nor any person
acting on their behalf (other than the Underwriters, as to whom the Company
makes no representation), has engaged or will engage, in connection with
the offering of the Preferred Securities, in any form of general
solicitation or general advertising within the meaning of the Securities
Act and the Rules and Regulations thereunder.
(y) 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.
(z) 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:
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(a) Such Selling Shareholder at the First Closing Date (as defined
herein) 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
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.
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(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
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.
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(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).
(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.
(m) Such Selling Shareholder has not, directly or indirectly,
solicited any offer to buy or offer to sell, and will not, directly or
indirectly, solicit any offer to buy or offer to sell, in the United States
or to any United States citizen or resident, any security which is or would
be integrated with the offer and proposed sale of the Preferred Securities
to be issued by a trust subsidiary of the Company in a manner that would
require the offer or sale of any of the Preferred Securities to be
registered under the Securities Act.
(n) Neither such Selling Shareholder nor any of such Selling
Shareholder's affiliates, as such term is defined in Rule 405 under the
Securities Act ("Affiliates"), nor any person acting on their behalf (other
than the Underwriters, as to whom such Selling Shareholder makes no
representation), has engaged or will engage, in connection with the
offering of the Preferred Securities, in any form of general solicitation
or general advertising within the meaning of the Securities Act and the
Rules and Regulations thereunder.
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
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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
Schedule II hereto, except that the respective purchase obligations of each
Underwriter shall be adjusted so that no Underwriter shall be obligated to
purchase fractional Option Shares.
(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 ▇.▇. ▇▇▇▇▇▇▇▇ & Co. ("Bradford"), ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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
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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 ▇▇▇▇▇▇▇▇ ▇▇▇
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 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
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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 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.
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(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 10% or more 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 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
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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) [UP TO $75,000 OF THE] 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
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
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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) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ & 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 owned beneficially and of record by the Company
in the amounts set forth on Exhibit 1(f) hereto and to such counsel's
knowledge are owned 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
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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 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
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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.
(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.
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(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.
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.
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(ii) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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.
(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.
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(d) The Underwriters shall have received an opinion or opinions,
dated the Closing Date, of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, 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
(including the consolidated financial statements of ▇▇▇▇▇▇)
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, 1997 and 1996 that are
incorporated by reference in the Registration Statement, nothing
has come to their 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 HISTORICAL AND PRO FORMA
FINANCIAL DATA" for each of the fiscal years ended September 30,
1995, 1996, and 1997 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
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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 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
Regulation S-X or that any pro forma adjustments have not been
properly applied to the historical amounts of the Company and ▇▇▇▇▇▇.
(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
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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
reflect a 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;
(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.
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(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, 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
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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
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
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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).
(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
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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 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
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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.
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.
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(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 ▇.▇. ▇▇▇▇▇▇▇▇ & Co.,
▇.▇. ▇▇▇▇▇▇▇▇ Financial Center, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, or if sent to the Company or the Selling
Shareholders shall be mailed, delivered or telegraphed and confirmed in writing
to the Company at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
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 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.
▇.▇. ▇▇▇▇▇▇▇▇ & CO., LLC
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY, LLC
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
SUNTRUST EQUITABLE SECURITIES CORPORATION
For themselves and as Representatives
of the several Underwriters
▇.▇. ▇▇▇▇▇▇▇▇ & CO., LLC
By:
-------------------------------------
Title:
-------------------------------
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:
-------------------------------------
Title:
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY, L.L.C.
By:
-------------------------------------
Title:
-------------------------------
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
By:
-------------------------------------
Title:
-------------------------------
SUNTRUST 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
▇▇▇▇▇▇▇ Carell ▇▇▇▇▇ Foundation
▇▇▇▇▇ Carell ▇▇▇▇▇▇▇ Foundation
▇▇▇▇▇ Carell ▇▇▇▇▇▇▇ Foundation
=====================
TOTAL 750,000
=====================
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SCHEDULE II
UNDERWRITERS
Number of Firm
Underwriter Shares to Be Purchased
------------------------------------------------- -----------------------------
▇.▇. ▇▇▇▇▇▇▇▇ & Co., LLC
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
SunTrust Equitable Securities Corporation
--------------------------
2,625,000
==========================
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