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AMERIKING, INC.
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$100,000,000
___% SENIOR NOTES DUE 2006
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UNDERWRITING AGREEMENT
DATED AS OF NOVEMBER ___, 1996
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Xxxxxxxxx, Xxxxxx & Xxxxxxxx Xxxxxxxxx & Company, Inc.
Securities Corporation
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November___, 1996
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXXXX & COMPANY, INC.
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
AmeriKing, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell (the "Notes Offering") $100,000,000 principal amount of its ___%
Senior Notes due 2006 (the "Securities") to Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation and Xxxxxxxxx & Company, Inc. (the "Underwriters"). The
Securities are to be issued pursuant to the provisions of an Indenture to be
dated as of ___________, 1996, (the "Indenture") between the Company and Fleet
National Bank, as Trustee (the "Trustee").
Concurrently with the Notes Offering, the Company is offering (the
"Units Offering" and, together with the Notes Offering, the "Offerings")
__________ Units (the "Units"), consisting of $30,000,000 aggregate liquidation
preference of ___% Senior Exchangeable Preferred Stock due 2008 (the "Senior
Preferred Stock") and ___________ shares of Common Stock (the "Common Stock").
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 (File No. 333-04261), including a
prospectus relating to the Securities, which may be amended. The registration
statement as amended at the time when it becomes effective, including a
registration statement (if any) filed pursuant to Rule 462(b) under the Act
increasing the size of the Offerings registered under the Act and information
(if any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Act, is hereinafter referred to
as the "Registration Statement" and the prospectus in the form first used to
confirm sales of Securities is hereinafter referred as the "Prospectus."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue
and sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, the principal amount of Securities set
forth opposite the name of such Underwriter in Schedule I hereto, at a purchase
price of ____% of the principal amount thereof (the "Purchase Price"), plus
accrued interest thereon, if any, from December 3, 1996, to the date of payment
and delivery.
3. TERMS OF PUBLIC OFFERING. The Company is advised by each of you
that you propose (i) to make a public offering of your respective portions of
the Securities as soon after the effective date of the Registration Statement
as in your judgment is advisable and (ii) initially to offer the Securities
upon the terms set forth in the Prospectus.
4. DELIVERY AND PAYMENT. Delivery to the Underwriters of, and payment
for, the Securities shall be made at 10:00 a.m., Eastern Standard Time, on
December 3, 1996, or such other date as may be permitted by the Commission
pursuant to Rule 15c6-1 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), following the date of the initial public offering (the
"Closing Date"), at the offices of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000. The Closing Date and the location of delivery of and the
form of payment for the Securities may be varied by agreement between you and
the Company.
Certificates for the Securities shall be registered in such names and
issued in such denominations as you shall request no later than two full
business days prior to the Closing Date. Such certificates shall be made
available to you for inspection not later than 9:30 a.m., Eastern Standard
Time, on the business day immediately preceding the Closing Date. Certificates
in definitive form evidencing the Securities shall be delivered to you on the
Closing Date, with any transfer taxes thereon duly paid by the Company, for the
respective accounts of the several Underwriters, against payment of the
Purchase Price therefor by wire transfer or certified or official bank check or
checks payable in same day funds to the order of the Company or as the Company
may direct.
5. AGREEMENTS OF THE COMPANY. The Company agrees with you:
(a) To use its best efforts to cause the Registration Statement
to become effective at the earliest possible time.
(b) To advise you promptly and, if requested by you, to confirm
such advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment to the Registration
Statement becomes effective, (ii) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information, (iii) of the
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issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purposes,
and (iv) of the happening of any event during the period referred to
in Section 5(e) which makes any statement of a material fact made in
the Registration Statement or the Prospectus untrue or which requires
the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements therein
not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the withdrawal or
lifting of such order at the earliest possible time.
(c) To provide you, without charge, one signed copy of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, and to furnish to you such
number of conformed copies of the Registration Statement as so filed
and of each amendment to it, without exhibits, as you may reasonably
request.
(d) Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective,
or to make any amendment or supplement to the Prospectus of which you
shall not previously have been advised or to which you shall
reasonably object; and to prepare and file with the Commission,
promptly upon your reasonable request, any amendment to the
Registration Statement or supplement to the Prospectus which may be
necessary or advisable in connection with the distribution of the
Securities by you, and to use its best efforts to cause the same to
become promptly effective.
(e) Promptly after the Registration Statement becomes effective,
and from time to time thereafter for such period as in the opinion of
counsel to the Underwriters a prospectus is required by law to be
delivered in connection with sales by an Underwriter or a dealer, to
furnish to each Underwriter and dealer as many copies of the
Prospectus (and of any amendment or supplement to the Prospectus) as
such Underwriter or dealer may reasonably request; provided, however,
that in the event either Underwriter is required to deliver a
prospectus nine months or more after the date hereof, the Company
promptly will prepare, at such Underwriter's expense, such amendment
or amendments to the Registration Statement and supplements or
amendments to the Prospectus as may be necessary to comply with the
requirements of Section 10(a)(3) of the Act.
(f) If during the period specified in Section 5(e), any event
shall occur as a result of which, in the opinion of counsel to the
Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements
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therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with any law, promptly
(i) to prepare and file with the Commission an appropriate amendment
or supplement to the Prospectus so that the statements in the
Prospectus, as so amended or supplemented, will not, in the light of
the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with law, and (ii) to furnish to each of
you and to such dealers as you shall specify, such number of copies of
the Prospectus as so amended or supplemented as you or such dealers
may reasonably request; provided, however, that in the event either
Underwriter is required to deliver a prospectus nine months or more
after the date hereof, the Company promptly will prepare, at such
Underwriter's expense, such amendment or amendments to the
Registration Statement and supplements or amendments to the Prospectus
as may be necessary to comply with the requirements of Section
10(a)(3) of the Act.
(g) Prior to any public offering of the Securities, (i) to
cooperate with the Underwriters and counsel to the Underwriters in
connection with the registration or qualification of the Securities
for offer and sale by the several Underwriters and by dealers under
the state securities or Blue Sky laws of such jurisdictions as the
Underwriters may request, (ii) to continue such qualification in
effect so long as required for distribution of the Securities and
(iii) to file such consents to service of process or other documents
as may be necessary to effect such registration or qualification;
provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified, or
to take any action which would subject it to general service of
process in any jurisdiction where it is not so subject.
(h) To mail and make generally available to its security holders
as soon as reasonably practicable an earnings statement covering a
period of at least twelve months after the effective date of the
Registration Statement (but in no event commencing later than 90 days
after such date) which shall satisfy the provisions of Section 11(a)
of the Act.
(i) So long as required by the Indenture or the Exchange Act, to
file reports pursuant to Section 13 or 15(d) of the Exchange Act, and,
during the period of three years following the date of this Agreement,
to deliver to you, promptly upon their becoming available, (i) copies
of all current, regular and periodic reports filed by the Company with
any securities exchange or with the Commission or any governmental
authority succeeding to any of the Commission's functions, and (ii)
copies of each report or other publicly available information of the
Company mailed to the holders of the Securities and
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such other publicly available information concerning the
Company and its subsidiaries as you may request.
(j) Prior to the Closing Date, to furnish to you, as soon as they
have been prepared by the Company, a copy of any consolidated
financial statements of the Company for any period subsequent to the
period covered by the financial statements appearing in the
Registration Statement.
(k) To use the proceeds from the sale of the Securities in the
manner specified in the Registration Statement (and any amendments or
supplements thereto) under the caption "Use of Proceeds."
(l) Not to voluntarily claim, and to resist actively any attempts
to claim, the benefit of any usury laws against the holders of the
Securities.
(m) To pay all costs, expenses, fees and taxes incident to:
(i) the preparation, printing, filing and distribution under
the Act of the Registration Statement (including financial
statements and exhibits), each preliminary prospectus and all
amendments and supplements to any of them prior to or during the
period specified in Section 5(e);
(ii) the printing and delivery of the Prospectus and all
amendments or supplements to the Prospectus during the period
specified in Section 5(e);
(iii) the printing and delivery of this Agreement, the
Indenture, the Securities, the Preliminary and Supplemental Blue
Sky Memoranda and all other agreements, memoranda, correspondence
and other documents printed and delivered in connection herewith
and with the Notes Offering (including, in each case, any
disbursements of your counsel relating to such printing and
delivery);
(iv) the issuance and delivery by the Company of the
Securities;
(v) the registration or qualification of the Securities for
offer and sale under the securities or Blue Sky laws of the
several states (including in each case the fees and disbursements
of your counsel relating to such registration or qualification
and memoranda relating thereto);
(vi) filings and clearance with the National Association of
Securities Dealers, Inc. in connection with the Notes Offering;
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(vii) furnishing such copies of the Registration Statement,
each preliminary prospectus and the Prospectus (including all
documents incorporated by reference therein) and all amendments
and supplements thereto as may be requested for use in connection
with the offering or sale of the Securities by you or by dealers
to whom Securities may be sold;
(viii) the rating of the Securities by rating agencies, if
any;
(ix) all fees and expenses (including fees and expenses of
counsel) of the Company in connection with approval of the
Securities by the Depository Trust Company for "book-entry"
transfer; and
(x) the performance by the Company of its other obligations
under this Agreement.
(n) If this Agreement shall be terminated pursuant to any of the
provisions hereof (other than a default by the Underwriters) or if for
any reason the Company shall be unable or unwilling to perform its
obligations hereunder, the Company shall, except as otherwise agreed
by the parties hereto, reimburse the Underwriters for the fees and
expenses to be paid or reimbursed by the Company pursuant to Section
5(m), and reimburse the Underwriters for all out-of-pocket expenses
(including the fees and expenses of counsel to the Underwriters)
reasonably incurred by the Underwriters or by dealers to whom
Securities may be sold in connection with the transactions
contemplated by this Agreement.
(o) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any securities of the Company
or warrants to purchase securities of the Company substantially
similar to the Securities (other than (i) the Securities and (ii) the
Units and the Senior Preferred Stock and the Common Stock comprising
the Units), without your prior written consent.
(p) Not to distribute any offering material in connection with
the offering and sale of the Securities other than the Registration
Statement, the Prospectus, and any preliminary prospectus.
(q) To use its best efforts to do and perform all things required
or necessary to be done and performed under this Agreement by the
Company prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Securities.
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6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective, no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material
respects with the Act and (iii) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this Section 6(b) do
not apply to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to either Underwriter
furnished to the Company in writing by such Underwriter expressly for
use therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Act, and each Registration
Statement filed pursuant to Rule 462(b) under the Act, if any,
complied when so filed in all material respects with the Act; and did
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, in the light of the circumstances under which they
were made, not misleading.
(d) Each of the Company and its subsidiaries (i) is duly
incorporated, validly existing as a corporation and in good standing
under the laws of its jurisdiction of incorporation, (ii) has full
corporate power and authority to carry on its business as it is
currently being conducted and to own, lease and operate its properties
and (iii) is duly qualified and in good standing as a foreign
corporation registered to do business in each jurisdiction in which
the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the condition
(financial or other), business, property, prospects, net worth or
results of operations of the Company and its subsidiaries taken as a
whole (a "Material Adverse Effect").
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(e) (i) All of the outstanding shares of capital stock of the
Company and each of its subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable, are not and, as a
result of the Notes Offering, will not be, subject to preemptive or
similar rights, (ii) except as described in the Prospectus, all shares
of the Company's subsidiaries' capital stock are owned by the Company,
directly or indirectly, free and clear of any security interest,
claim, lien or encumbrance and (iii) except as described in the
Prospectus, there are no outstanding rights, warrants or options to
acquire, or instruments convertible into or exchangeable for, any
capital stock or other equity interest in the Company or any of its
subsidiaries.
(f) Neither the Company nor any of its subsidiaries is (i) in
violation of its respective charter or bylaws or (ii) in default in
any material respect in the performance of any obligation, agreement
or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any other agreement, indenture or
instrument material to the conduct of the business of the Company and
its subsidiaries taken as a whole, to which the Company or any of its
subsidiaries is a party or by which it or any of its subsidiaries or
their respective property is bound.
(g) None of (i) the execution, delivery or performance by the
Company of its obligations under this Agreement or the Indenture, (ii)
the issuance and sale of the Securities by the Company and (iii) the
consummation by the Company of the transactions described in the
Prospectus under the caption "Use of Proceeds," will conflict with or
constitute a breach of any of the terms or provisions of, or a default
under, or result in the imposition of a lien or encumbrance on any
properties of the Company or any of its subsidiaries, or an
acceleration of indebtedness pursuant to, (A) the charter or bylaws of
the Company or any of its subsidiaries, (B) any bond, debenture, note,
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which
any of them or their property is bound, the violation of which would
reasonably be expected to result in a Material Adverse Effect, or (C)
any law or administrative regulation applicable to the Company, any of
its subsidiaries or any of their assets or properties, or any
judgment, order or decree of any court or governmental agency or
authority entered in any proceeding to which the Company or any of its
subsidiaries was or is now a party or to which any of them or their
respective properties may be subject.
(h) No consent, approval, authorization or order of, or filing or
registration with, any regulatory body, administrative agency, or
other governmental agency (except as securities or Blue Sky laws of
the various states may require)
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that has not been made or obtained is required for (i) the execution,
delivery and performance of the Company's obligations under this
Agreement or the Indenture, (ii) the valid issuance and sale of the
Securities or (iii) the performance by the Company of the transactions
contemplated hereby or by the Indenture. No consents or waivers from
any person are required to consummate the transactions contemplated by
this Agreement, the Indenture, the Prospectus or the Registration
Statement, other than such consents and waivers as have been or will
be obtained prior to the Closing Date.
(i) The Company has all necessary corporate power and authority
to enter into and perform its obligations under this Agreement and the
Indenture and to issue, sell and deliver the Securities to
Underwriters.
(j) This Agreement has been duly authorized and validly executed
by the Company and (assuming the due execution and delivery thereof by
you) is a legally valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except as the
enforceability thereof may be (i) subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect which
affect the enforcement of creditors' rights generally, (ii) limited by
general principles of equity (whether considered in a proceeding at
law or in equity) and (iii) limited by securities laws prohibiting or
limiting the availability of, and public policy against,
indemnification or contribution.
(k) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
(l) The Company has duly authorized the Indenture and, when
executed and delivered (assuming the due authorization, execution and
delivery thereof by the Trustee), the Indenture will be a legally
valid and binding obligation of the Company, enforceable against it in
accordance with its terms, except as the enforceability thereof may be
(i) subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which affect the enforcement
of creditors' rights generally and (ii) limited by general principles
of equity (whether considered in a proceeding at law or in equity).
(m) The Company has duly authorized the Securities and, when
issued and authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the Underwriters in accordance with
the terms hereof, the Securities will conform to the description
thereof in the Prospectus and will be the legally valid and binding
obligations of the Company, enforceable against it in accordance with
their terms, except as the enforceability
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thereof may be (i) subject to applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws in effect which affect the
enforcement of creditors' rights generally and (ii) limited by general
principles of equity (whether considered in a proceeding at law or in
equity).
(n) There is (i) no action, suit or proceeding before or by any
court, arbitrator or governmental agency, body or official, domestic
or foreign, now pending or, to the knowledge of the Company,
threatened or contemplated to which the Company or any of its
subsidiaries is or may be a party or to which the business or property
of the Company or any of its subsidiaries is subject, (ii) no statute,
rule, regulation or order that has been enacted, adopted or issued by
any governmental agency or, to the best knowledge of the Company,
proposed by any governmental body and (iii) no injunction, restraining
order or order of any nature by a federal or state court of competent
jurisdiction to which the Company or any of its subsidiaries is or may
be subject issued that, in the case of clauses (i), (ii) and (iii)
above, (A) is required to be disclosed in the Registration Statement
or the Prospectus and that is not so disclosed, (B) might have a
Material Adverse Effect, (C) would interfere with or adversely affect
the issuance of the Securities or (D) in any manner draw into question
the validity of this Agreement, the Indenture or the Securities.
(o) No holder of any security of the Company or any of its
subsidiaries has any right or, by reason of the execution by the
Company of this Agreement or the Indenture or the consummation of the
transactions contemplated hereby or thereby, will have the right to
require registration of any security of the Company.
(p) No contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement is not so described
or filed as required.
(q) Neither the Company nor any of its subsidiaries is involved
in any material labor dispute nor, to the knowledge of the Company or
any of its subsidiaries, is any material labor dispute threatened
which, if such dispute were to occur, could have a Material Adverse
Effect.
(r) Neither the Company nor any of its subsidiaries has violated
any safety or similar law applicable to its business, nor any federal
or state law relating to discrimination in the hiring, promotion or
pay of employees nor any applicable federal or state wages and hours
laws, nor any provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or the rules and regulations
promulgated thereunder, except for such instances of noncompliance
that,
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either singly or in the aggregate, could not have a Material
Adverse Effect.
(s) Each of the Company and its subsidiaries is in compliance
with all applicable existing federal, state, local and foreign laws
and regulations relating to the protection of human health or the
environment or imposing liability or standards of conduct concerning
any Hazardous Material (as defined below) (collectively,
"Environmental Laws"), except for such instances of noncompliance
that, either singly or in the aggregate, could not have a Material
Adverse Effect. The term "Hazardous Material" means (i) any "hazardous
substance" as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, (ii) any
"hazardous waste" as defined by the Resource Conservation and Recovery
Act of 1976, as amended, (iii) any petroleum or petroleum product,
(iv) any polychlorinated biphenyl and (v) any pollutant or contaminant
or hazardous, dangerous or toxic chemical, material, waste or
substance regulated under or within the meaning of any other
Environmental Law. There is no alleged liability, or, to the best
knowledge and information of the Company, potential liability
(including, without limitation, alleged or potential liability for
investigatory costs, cleanup costs, governmental response costs,
natural resources damages, property damages, personal injuries, or
penalties) of the Company or any of its subsidiaries arising out of,
based on, or resulting from (A) the presence or release into the
environment of any Hazardous Material at any location currently or
previously owned by the Company or any of its subsidiaries or at any
location currently or previously used or leased by the Company or any
of its subsidiaries or (B) any violation or alleged violation of any
Environmental Law, except in each case with respect to clauses (A) and
(B), alleged or potential liabilities that, singly or in the
aggregate, could not have a Material Adverse Effect.
(t) Each of the Company and its subsidiaries owns or possesses
the right to use the patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names
(collectively, "Intellectual Property") presently employed by it in
connection with the businesses it now operates, except where the
failure to own or possess such Intellectual Property could not, either
singly or in the aggregate, have a Material Adverse Effect, and
neither the Company nor any of its subsidiaries has received any
notice that its use of any Intellectual Property allegedly infringes
upon, or conflicts with, rights asserted by others, except for such
instances that, singly or in the aggregate, could not have a Material
Adverse Effect if an unfavorable decision, judgment, ruling or
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finding is rendered against the Company or any of its subsidiaries.
(u) Except as set forth in the Prospectus, all tax returns
required to be filed by each of the Company and its subsidiaries in
any jurisdiction have been filed, and all material taxes (including,
but not limited to, withholding taxes, penalties and interest,
assessments, fees and other charges due or claimed to be due from any
taxing authority) have been paid other than those (i) being contested
in good faith and for which adequate reserves have been provided, or
(ii) currently payable without penalty or interest.
(v) Except as set forth in the Prospectus or that, singly or in
the aggregate, could not have a Material Adverse Effect, (i) each of
the Company and its subsidiaries has (A) such permits, licenses,
franchises and authorizations of governmental or regulatory
authorities ("Permits") as are necessary to own, lease and operate its
properties and to conduct its business as presently conducted, and (B)
fulfilled and performed all of its material obligations with respect
to the Permits, and (ii) no event has occurred that could allow, or
after notice or lapse of time could allow, revocation or termination
of any Permit or that could result in any other material impairment of
the rights granted to the Company or any of its subsidiaries under any
Permit, and the Company has no reason to believe that any governmental
body or agency is considering limiting, suspending or revoking any
Permit.
(w) Except as set forth in the Prospectus or that, singly or in
the aggregate, could not have a Material Adverse Effect, (i) each of
the Company and its subsidiaries has good and marketable title, free
and clear of all liens, claims, encumbrances and restrictions, except
liens for taxes not yet due and payable, to all property and assets
described in the Prospectus as being owned by it, (ii) each lease to
which the Company or any of its subsidiaries is a party is valid and
binding and no default has occurred or is continuing thereunder, and
(iii) each of the Company and its subsidiaries enjoys peaceful and
undisturbed possession under all such leases to which it is a party as
lessee.
(x) Each of the Company and its subsidiaries maintains adequate
insurance for its businesses and the value of its properties
(including, without limitation, public liability insurance, third
party property damage insurance and replacement value insurance) and
all such insurance is outstanding and in force as of the date of this
Agreement.
(y) The financial statements, together with the related schedules
and notes, forming part of the Registration Statement and the
Prospectus (and any amendment or supplement thereto) present fairly
the consolidated financial position, results of operations and changes
in financial position of the
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Company and its subsidiaries on the basis stated in the Registration
Statement at the respective dates or for the respective periods to
which they apply, and such financial statements and related schedules
and notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, except as disclosed therein. The pro forma financial
statements, together with the related schedules and notes, forming
part of the Registration Statement and the Prospectus (and any
amendment or supplement thereto) are, in all material respects,
accurately presented and prepared in good faith on the basis of the
assumptions described therein, and such assumptions are reasonable and
the adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(z) Each of the Company and its subsidiaries maintains a system
of internal accounting controls sufficient to provide assurance that:
(i) transactions are executed in accordance with
management's general or specific authorizations;
(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; and
(iii) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate
action is taken with respect thereto.
(aa) Subsequent to the dates for which information is given in
the Registration Statement and the Prospectus and up to the Closing
Date, unless set forth in the Registration Statement and the
Prospectus:
(i) none of the Company or its subsidiaries has incurred any
liabilities or obligations, direct or contingent, which are
material, singly or in the aggregate, to the Company and its
subsidiaries taken as a whole, nor entered into any material
transactions not in the ordinary course of business;
(ii) there has not been any decrease in the Company's
capital stock or the capital stock of any of the Company's
subsidiaries or any increase in long-term indebtedness to meet
working capital requirements or any material increase in
short-term indebtedness of the Company or any of its subsidiaries
or any payment of or declaration to pay any dividends or any
other distribution with respect to the Company's or any of its
subsidiaries' capital stock, as the case may be; and
13
(iii) there has not been any event or series of events that
would have a Material Adverse Effect.
(bb) Prior to and after the issuance of the Securities and the
Units, (i) the present fair salable value of the assets of the Company
and its subsidiaries exceeded and will exceed the amount that will be
required to be paid on, or in respect of, the debts and other
liabilities (including contingent liabilities) of the Company and its
subsidiaries as they become absolute and matured, (ii) the assets of
the Company and its subsidiaries do not constitute and will not
constitute unreasonably small capital to carry out their businesses as
conducted or as proposed to be conducted, and (iii) the Company and
its subsidiaries do not intend to, or believe that they will, incur
debts or other liabilities beyond their ability to pay such debts and
liabilities as they mature. The Company does not intend to, and does
not intend to permit any of its subsidiaries to, incur debts or other
liabilities beyond their respective ability to pay such debts and
liabilities as they mature.
(cc) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(dd) Deloitte & Touche LLP are independent public accountants
with respect to the Company as required by the Act.
(ee) The Company has no direct or indirect subsidiaries other
than those listed on Exhibit 21 to the Registration Statement.
(ff) The execution and delivery of this Agreement, the Indenture
and the sale of the Securities will not involve any prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975
of the Code.
(gg) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls either Underwriter
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or any
14
preliminary prospectus, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein, not misleading, except
insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to either
Underwriter furnished in writing to the Company by such Underwriter
expressly for use therein; provided, however, that the indemnification
contained in this Section 7(a) with respect to any preliminary
prospectus shall not inure to the benefit of either Underwriter (or to
the benefit of any person controlling such Underwriter) on account of
any such loss, claim, damage, liability or judgment (i) arising from
the sale of the Securities by such Underwriter to any person if a copy
of the Prospectus shall not have been delivered or sent to such
person, at or prior to the written confirmation of such sale, and the
untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such preliminary prospectus
was corrected in the Prospectus, provided that the Company has
delivered the Prospectus to the Underwriters in requisite quantity on
a timely basis to permit such delivery or sending or (ii) resulting
from the use by such Underwriter of any registration statement or
prospectus, or any amendment or supplement thereto, referred to in
Section 5(e) when, under Section 10 hereof, such Underwriter was not
permitted to do so; provided further, however, that the foregoing
exceptions in clauses (i) and (ii) shall not affect the indemnity with
respect to any other Underwriter not otherwise subject to such
exceptions.
(b) In case any action shall be brought against either
Underwriter or any person controlling such Underwriter, based upon any
preliminary prospectus, the Registration Statement or the Prospectus
or any amendment or supplement thereto and with respect to which
indemnity may be sought against the Company, such Underwriter shall
promptly notify the Company in writing and the Company shall assume
the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and
expenses. Either Underwriter or any such controlling person shall have
the right to employ separate counsel in any such action and
participate in the defense thereof, but the reasonable fees and
expenses of such counsel shall be at the expense of such Underwriter
or such controlling person unless (i) the employment of such counsel
has been specifically authorized in writing by the Company, (ii) the
Company has failed to assume the defense and employ counsel or (iii)
the named parties to any such action (including any impleaded parties)
include both such Underwriter or such controlling person and the
Company and such Underwriter or such controlling person shall have
been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to
those available to the Company (in which case
15
the Company shall not have the right to assume the defense of such
action on behalf of such Underwriter or such controlling person, it
being understood, however, that the Company shall not, in connection
with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all such Underwriters and controlling persons,
which firm shall be designated in writing by Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation, and that all such fees and expenses
shall be reimbursed as they are incurred). The Company shall not be
liable for any settlement of any such action effected without the
written consent of the Company but, if settled with the Company's
written consent, the Company agrees to indemnify and hold harmless
such Underwriter and any such controlling person from and against any
loss or liability by reason of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the
subject matter of such proceeding.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and any person controlling them
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act (collectively, the "Company Indemnified Parties"), to the
same extent as the foregoing indemnity from the Company to each
Underwriter but only with reference to information relating to such
Underwriter furnished in writing by such Underwriter expressly for use
in the Registration Statement, the Prospectus or any preliminary
prospectus. In case any action shall be brought against any Company
Indemnified Party based on the Registration Statement, the Prospectus
or any preliminary prospectus in respect of which indemnity may be
sought against an Underwriter, such Underwriter shall have the rights
and duties given to the Company (except that if the Company shall have
assumed the defense thereof, such Underwriter shall not be required to
do so, but may employ separate counsel therein and participate in the
defense thereof but the fees and expenses of such counsel shall be at
the expense of such Underwriter), and the Company Indemnified Parties
shall have the rights and duties given to such Underwriter by Section
7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying
16
such indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Underwriters
in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative benefits
received by the Company and the Underwriters shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Securities (before deducting expenses) received by the Company, and
the total underwriting discounts and commissions received by the
Underwriters, bear to the total price to the public of the Securities,
in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and the Underwriters
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The losses,
claims, damages, liabilities or judgments of an indemnified party
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the discounts and commissions received by it exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7(d) are several in proportion to the
respective principal amount of
17
Securities purchased by each of the Underwriters hereunder and not
joint.
(e) The Company hereby designates The Jordan Company, 0 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent, upon which
process may be served in any action, suit or proceeding which may be
instituted in any state or federal court in the State of New York by
either Underwriter or person controlling such Underwriter asserting a
claim for indemnification or contribution under or pursuant to this
Section 7, and the Company will accept the jurisdiction of such court
in such action, and waive, to the fullest extent permitted by
applicable law, any defense based upon lack of personal jurisdiction
or venue. A copy of any such process shall be sent or given to the
Company, at the address for notices specified in Section 11(a) hereof.
(f) The indemnity and contribution agreements contained in this
Section 7 are in addition to any liability which the indemnifying
persons may otherwise have to the indemnified persons referred to
above.
8. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Securities under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the date
hereof and on the Closing Date, with the same force and effect as if
made on and as of the date hereof and the Closing Date, respectively.
The Company shall have performed or complied with all of the
agreements and satisfied all conditions to be performed, complied with
or satisfied by it on or prior to the Closing Date.
(b) The Registration Statement shall have become effective not
later than 5:00 p.m. (and in the case of a Registration Statement
filed under Rule 462(b) of the Act, not later than 10:00 p.m.),
Eastern Standard Time, on the date of this Agreement or at such later
date and time as you may approve in writing, and at the Closing Date
no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been commenced or shall be pending before or contemplated
by the Commission.
(c) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have been any
downgrading, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the rating
accorded any of the Company's
18
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Act.
(d) (i) The Prospectus shall have been printed and copies
distributed to the Underwriters not later than 9:00 a.m., Eastern
Standard Time, on ________________, 1996, or at such later date and
time as the Underwriters may approve in writing; and
(ii) no injunction, restraining order or order of any nature
by a federal or state court of competent jurisdiction shall have
been issued as of the Closing Date which would prevent the
issuance of the Securities.
(e) (i) Since the date of the latest balance sheet included in
the Registration Statement and the Prospectus, there shall not have
been any event that had a Material Adverse Effect, or any development
involving a prospective change that could have a Material Adverse
Effect, whether or not arising in the ordinary course of business;
(ii) since the date of the latest balance sheet included in
the Registration Statement and the Prospectus, there shall not
have been any change, or any development involving a prospective
change, in the capital stock or in the long-term debt of the
Company and its subsidiaries from that set forth in the
Registration Statement and the Prospectus;
(iii) the Company and its subsidiaries shall have no
material liability or obligation, direct or contingent, other
than those reflected in the Registration Statement and the
Prospectus; and
(iv) on the Closing Date you shall have received
certificates dated the Closing Date, signed on behalf of the
Company by the Chief Executive Officer and the Chief Financial
Officer of the Company, confirming all of the matters set forth
in Sections 8(a), (b), (c), (d) and (e) of this Agreement with
respect to the Company.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel to you) dated the Closing Date, of
Xxxxx, Xxxxx & Xxxxx, counsel to the Company (provided that the
opinions with respect to subsidiaries of the Company incorporated in
the states of Colorado, Illinois, Michigan and Ohio will be provided
by Xxxxxxxx & Xxxxxx), to the effect that:
(i) based on telephonic confirmation from the Commission,
the Registration Statement has become effective under the Act
and, to the knowledge of such counsel, no stop order suspending
its effectiveness has
19
been issued and no proceedings for that purpose are pending
before, threatened or contemplated by the Commission;
(ii) the Registration Statement (including any Registration
Statement filed under Rule 462(b) of the Act, if any) and the
Prospectus and any supplement or amendment thereto (except for
financial statements as to which no opinion need be expressed)
comply as to form in all material respects with the Act;
(iii) each of the Company and its subsidiaries is duly
incorporated, validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
full corporate power and authority required to carry on its
business as it is currently being conducted and to own, lease and
operate its properties;
(iv) each of the Company and its subsidiaries is duly
qualified and in good standing as a foreign corporation
registered to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect;
(v) all of the outstanding shares of capital stock of the
Company and each of its subsidiaries have been duly authorized
and validly issued, are fully paid and non-assessable, are not
subject to preemptive or similar rights and all shares of the
Company's subsidiaries' capital stock are owned, directly or
indirectly, by the Company, to the best of such counsel's
knowledge, free and clear of any security interest, claim, lien
or encumbrance;
(vi) to such counsel's knowledge, except as disclosed in the
Prospectus, there are no outstanding rights, warrants or options
to acquire, or instruments convertible into or exchangeable for,
any capital stock, or other equity interest, in the Company or
any of its subsidiaries;
(vii) neither the Company nor any of its subsidiaries is in
violation of its respective charter or bylaws and, to the
knowledge of such counsel after due inquiry, neither the Company
nor any of its subsidiaries is in default in the performance of
any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any
other agreement, indenture or instrument material to the conduct
of the business of the Company and its subsidiaries taken as a
whole, to which the Company or
20
any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound;
(viii) none of (A) the execution, delivery or performance by
the Company of this Agreement or the Indenture, (B) the issuance
and sale of the Securities by the Company and (C) the
consummation by the Company of the transactions described in the
Prospectus under the caption "Use of Proceeds," will conflict
with or constitute a breach of any of the terms or provisions of,
or a default under, or result in the imposition of a lien or
encumbrance on any properties of the Company or any of its
subsidiaries, or an acceleration of indebtedness pursuant to, (1)
the charter or bylaws of any of the Company or the Company's
subsidiaries, (2) any bond, debenture, note, indenture, mortgage,
deed of trust or other agreement or instrument known to such
counsel after due inquiry to which the Company or any of its
subsidiaries is a party or by which any of them or their property
is bound, or (3) to the best of such counsel's knowledge, any law
or administrative regulation applicable to the Company, any of
its subsidiaries or any of their assets or properties, or any
judgment, order or decree of any court or governmental agency or
authority entered in any proceeding to which the Company or any
of its subsidiaries was or is now a party or to which any of them
or their respective properties may be subject and which is known
to such counsel;
(ix) no consent, approval, authorization or order of, or
filing or registration with, any regulatory body, administrative
agency, or other governmental agency (except as securities or
Blue Sky laws of the various states may require) that has not
been made or obtained is required for (A) the execution, delivery
and performance of this Agreement or the Indenture, (B) the valid
issuance and sale of the Securities or (C) the performance by the
Company of the transactions contemplated hereby or by the
Indenture, such as to which the failure to be obtained or made
would not reasonably be expected, either singly or in the
aggregate, to have a Material Adverse Effect;
(x) to such counsel's knowledge, no consents or waivers from
any person are required to consummate the transactions
contemplated by this Agreement or the Indenture, other than such
consents and waivers as have been or will be obtained prior to
the Closing Date;
(xi) the Company has all necessary corporate power and
authority to enter into and perform its obligations under this
Agreement and the Indenture and to issue, sell
21
and deliver the Securities to the Underwriters to be sold by the
Underwriters pursuant to this Agreement;
(xii) this Agreement has been duly authorized and validly
executed by the Company and (assuming the due execution and
delivery thereof by you) is a legally valid and binding
obligation of the Company, enforceable against it in accordance
with its terms, except as the enforceability thereof may be (A)
subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which affect the
enforcement of creditors' rights generally, (B) limited by
general principles of equity (whether considered in a proceeding
at law or in equity) and (C) limited by securities laws
prohibiting or limiting the availability of, and public policy
against, indemnification or contribution;
(xiii) the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended;
(xiv) the Company has duly authorized the Indenture and,
when executed and delivered (assuming due authorization,
execution and delivery of the Indenture by the Trustee), the
Indenture will be a legally valid and binding obligation of the
Company, enforceable against it in accordance with its terms,
except as the enforceability thereof may be (A) subject to
applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws in effect which affect the enforcement of creditors
rights generally and (B) limited by general principles of equity
(whether considered in a proceeding at law or in equity);
(xv) the Company has duly authorized the Securities and,
when issued and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, the Securities will
conform to the description in the Prospectus, and will be the
legally valid and binding obligations of the Company, enforceable
against it in accordance with their terms, except as the
enforceability thereof may be (A) subject to applicable
bankruptcy, insolvency, moratorium, reorganization or similar
laws in effect which affect the enforcement of creditors' rights
generally and (B) limited by general principles of equity
(whether considered in a proceeding at law or in equity);
(xvi) to the best knowledge of such counsel, after due
inquiry, there is (i) no action, suit or proceeding before or by
any court, arbitrator or governmental agency, body or official,
domestic or foreign, now pending, threatened or contemplated to
which the Company or any of its subsidiaries is or may be a
22
party or to which the business or property of the Company or any
of its subsidiaries is or may be subject, (ii) no statute, rule,
regulation or order that has been enacted, adopted or issued by
any governmental agency or proposed by any governmental body, or
(iii) no injunction, restraining order or order of any nature by
a federal or state court of competent jurisdiction applicable to
the Company or any of its subsidiaries has been issued that, in
the case of clauses (i), (ii) and (iii) above, (a) is required to
be disclosed in the Registration Statement or the Prospectus and
that is not so disclosed, (b) would interfere with or adversely
affect the issuance of the Securities, or (c) might invalidate
any provision or the validity of this Agreement, the Indenture or
the Securities;
(xvii) to the best of such counsel's knowledge, after due
inquiry, no holder of any security of the Company has any right
to require registration of any security of the Company;
(xviii) the statements under the captions "Description of
Securities," "Description of Certain Indebtedness," and "Certain
Transactions" in the Prospectus, as amended or supplemented, and
Item 14 and, assuming the accuracy of the representations and
warranties of the Company at the time of the transactions
referred to therein, which such counsel has no reason to believe
are inaccurate, Item 15 of Part II of the Registration Statement,
insofar as such statements constitute a summary of legal matters,
documents or proceedings referred to therein, present fairly the
information called for with respect to such legal matters,
documents or proceedings; and
(xix) the Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
In addition, such counsel shall state that it has participated in
conferences with certain officers and other representatives of the
Company, representatives of the Company's accountants, the
Underwriters' representatives and counsel to the Underwriters, at
which conferences the contents of the Registration Statement and
Prospectus and any amendments or supplements thereto, and related
matters were discussed, and, although such counsel has not
independently verified and is not passing upon and assumes no
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus,
and any amendment or supplement thereto, no facts have come to such
counsel's attention which led it to believe that the Registration
Statement as of the effective date or on the date
23
of such opinion contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary
to make the statements contained therein not misleading, and that the
Prospectus, as of the date thereof or on the date of such opinion,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements contained therein, in light of the circumstances under
which they were made, not misleading (it being understood that such
counsel need express no view with respect to the financial statements
and data and related notes, the financial statement schedules and
other financial, statistical and accounting data included in the
Registration Statement and Prospectus).
(g) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Xxxxxx & Xxxxxxx, counsel to you, in form and
substance reasonably satisfactory to you, and the Company shall have
provided Xxxxxx & Xxxxxxx such papers and information as it requests
to enable it to pass upon the matters contained in such opinion.
(h) You shall have received letters from Deloitte & Touche LLP,
independent public accountants, on the date hereof and on the Closing
Date, in form and substance satisfactory to you, with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus.
(i) The Company and the Trustee shall have entered into the
Indenture and you shall have received counterparts, conformed as
executed thereof.
(j) The Company shall have fully performed or complied with all
of the agreements contained in this Agreement and required to be
performed or complied with by the Company on or prior to the Closing
Date.
(k) On the Closing Date, the Units Offering shall be consummated
on substantially the same terms as those set forth in the Registration
Statement and the Prospectus.
9. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. This Agreement shall
become effective upon the later of (i) the execution of this Agreement or (ii)
when notification of the effectiveness of the Registration Statement has been
released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date
by you by written notice to the Company if any of the following has occurred:
(a) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, any
24
adverse change or development involving a prospective adverse change
which would cause a Material Adverse Effect, on the earnings, affairs,
or business prospects of the Company or any of its subsidiaries,
whether or not arising in the ordinary course of business, which
would, in your judgment, make it impracticable to market the
Securities on the terms and in the manner contemplated in the
Prospectus;
(b) Any outbreak or escalation of hostilities or other national
or international calamity or crisis or material change in economic
conditions, if the effect of such outbreak, escalation, calamity,
crisis or change on the financial markets of the United States or
elsewhere would, in your judgment, be material and adverse and make it
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus;
(c) The suspension or material limitation of trading in
securities on the New York Stock Exchange, the American Stock Exchange
or the Nasdaq National Market or the limitation on prices for
securities on any such exchange or National Market System;
(d) The enactment, publication, decree or other promulgation of
any federal or state statute, regulation, rule or order of any court
or other governmental authority which in your opinion causes or will
cause a Material Adverse Effect;
(e) The declaration of a banking moratorium by either federal or
New York State authorities;
(f) The taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs
which in your opinion has a material adverse effect on the financial
markets in the United States; or
(g) Any of the Company's securities shall have been downgraded or
placed on any "watch list" for possible downgrading by any nationally
recognized statistical rating organization, provided that in the case
of such "watch list" placement, termination shall be permitted only if
such placement would, in your judgment, make it impracticable or
inadvisable to market the Securities or to enforce contracts for the
sale of the Securities or materially impair the investment quality of
the Securities.
If on the Closing Date either of the Underwriters shall fail or refuse
to purchase the Securities which it has agreed to purchase hereunder on such
date and arrangements satisfactory to the non-defaulting Underwriter and the
Company for purchase of such Securities are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of such
non-defaulting Underwriter. In any such case that does not result in
termination of this Agreement, such non-defaulting Underwriter or
25
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default by
it under this Agreement.
10. AGREEMENT OF THE UNDERWRITERS.
Each Underwriter agrees, severally and not jointly, that, upon its
receipt of any written notice from the Company of the existence of any fact or
the happening of any event that requires the making of any additions to or
changes in the Registration Statement or the Prospectus or any amendment or
supplement thereto in order that such document will not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances
existing as of the date such document was delivered, not misleading, such
Underwriter shall forthwith discontinue disposition of the Securities pursuant
to such document until (i) such Underwriter receives from the Company copies of
an amended or supplemented document that the Company states in writing may be
used by such Underwriter or (ii) such Underwriter is advised in writing by the
Company that the use of such document may be resumed.
11. MISCELLANEOUS.
(a) Notices given pursuant to any provision of this Agreement
shall be addressed as follows: (i) if to the Company, to AmeriKing,
Inc., 0000 Xxxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxx 00000,
Attention: Chief Financial Officer, with a copy to Xxxxx, Xxxxx &
Xxxxx, 0000 Xxxxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx X. Xxxxxxx, and (ii) if to the Underwriters, (A) to Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation, 000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Syndicate Department and Compliance Department
and (B) to Xxxxxxxxx & Company, Inc., 00000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Syndicate Department and
Compliance Department, with a copy to Xxxxxx & Xxxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, or in
any case to such other address as the person to be notified may have
requested in writing.
(b) The respective indemnities, contribution agreements,
representations, warranties and other statements set forth in or made
pursuant to this Agreement shall remain operative and in full force
and effect, and will survive delivery of and payment for the
Securities, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of any such person, (ii)
acceptance of the
26
Securities and payment for them under this Agreement and (iii)
termination of this Agreement.
(c) Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company,
the Underwriters, any controlling persons referred to herein and their
respective successors and assigns, all as and to the extent provided
in this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of the Securities from either
of the Underwriters merely because of such purchase.
(d) This Agreement shall be construed, interpreted and the rights
of the parties determined in accordance with the laws of the State of
New York without reference to its choice of law provisions.
(e) This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
27
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
AMERIKING, INC.
By:
--------------------------------
Name:
Title:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:
-------------------------------
Name:
Title:
XXXXXXXXX & COMPANY, INC.
By:
-------------------------------
Name:
Title:
28
SCHEDULE I
Principal Amount
of Securities
Underwriters to be Purchased
------------ ----------------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation ............................... $
Xxxxxxxxx & Company, Inc. ............................... $
------------
$100,000,000
