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EXHIBIT 1.1
AMF BOWLING, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
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UNDERWRITING AGREEMENT
(U.S. VERSION)
................., 1997
Xxxxxxx, Xxxxx & Co.,
Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxx & Company,
Xxxxxxxx & Co. Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
AMF Bowling, Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
10,000,000 shares (the "Firm Shares") and, at the election of the Underwriters,
up to 1,500,000 additional shares (the "Optional Shares") of Common Stock, par
value $.01 per share ("Stock"), of the Company (the Firm Shares and the Optional
Shares that the Underwriters elect to purchase pursuant to Section 2 hereof
being collectively called the "Shares"). As part of the offering contemplated by
this Agreement, Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx") has agreed
to reserve out of the Shares set forth opposite its name on Schedule I to this
Agreement up to 85,000 shares for sale to the Company's employees, officers,
directors and certain other individuals designated by the Company (collectively,
"Participants"), as set forth in the Prospectus (as defined below) under the
heading "Underwriting" (the "Directed Share Program"). The Shares to be sold by
Xxxxxx Xxxxxxx pursuant to the Directed Share Program (the "Directed Shares")
will be sold by Xxxxxx Xxxxxxx pursuant to this Agreement at the public offering
price. Any Directed Shares not orally confirmed for purchase by any Participants
by the end of the first business day after the date on which this Agreement is
executed will be offered to the public by Xxxxxx Xxxxxxx as set forth in the
Prospectus.
It is understood and agreed to by all parties that the Company is
concurrently entering into an agreement (the "International Underwriting
Agreement") providing for the sale by the Company of up to a total of 2,875,000
shares of Stock (the "International Shares"), including the overallotment option
thereunder, through arrangements with certain underwriters outside the United
States (the "International Underwriters"), for whom Xxxxxxx Sachs International,
Xxxxxx Xxxxxxx & Co. International Limited, Xxxxx International L.P. and J.
Xxxxx Xxxxxxxx & Co. Limited are acting as lead managers. Anything herein or
therein to the contrary notwithstanding, the respective closings under this
Agreement and the International Agreement are hereby expressly made conditional
on one another. The Underwriters hereunder and the International Underwriters
are simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates") which provides,
among other things, for the transfer of shares of Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
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offering and sale of shares of Stock contemplated by the foregoing, one relating
to the Shares hereunder and the other relating to the International Shares. The
latter form of prospectus will be identical to the former except for certain
substitute pages. Except as used in Sections 2, 4, 5, 12 and 14 herein, and
except as the context may otherwise require, references hereinafter to the
Shares shall include all of the shares of Stock which may be sold pursuant to
either this Agreement or the International Underwriting Agreement, and
references herein to any prospectus whether in preliminary or final form, and
whether as amended or supplemented, shall include both the U.S. and the
international versions thereof.
1. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-34099)
(as amended by any pre-effective amendments, the "Initial Registration
Statement") in respect of the Shares has been filed with the Securities
and Exchange Commission (the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto, each in the form
heretofore delivered to you, and, excluding exhibits thereto, to you
for each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no
other document with respect to the Initial Registration Statement has
heretofore been filed with the Commission; and no stop order suspending
the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with
the Commission pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Act is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 6(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, each as
amended at the time such part of the registration statement became
effective or such part of the Rule 462(b) Registration Statement, if
any, became or hereafter becomes effective, are hereinafter
collectively called the "Registration Statement"; and such final
prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "Prospectus");
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, 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; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through Xxxxxxx, Sachs & Co. expressly for use
therein;
(c) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
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statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, which would, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the general
affairs, management, properties, financial position, stockholders'
equity, results of operations or prospects of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect"), otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock, short-term debt or long-term debt of the Company or any
of its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, properties,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(e) Each of the Company and each of its subsidiaries has good
and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by it, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect and do not interfere with the use made and proposed to be made
of such property by the Company or any of its subsidiaries; and any
real property and buildings held under lease by the Company or any of
its subsidiaries are held by it under valid, subsisting and enforceable
leases with such exceptions as would not, individually or in the
aggregate, reasonably be expected, to have a Material Adverse Effect
and do not interfere with the use made and proposed to be made of such
property and buildings by the Company or any of its subsidiaries;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except for such failure
to be so qualified or in good standing as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect;
(g) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except for such failure to be so qualified or in good
standing as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(h) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description of the Stock
contained in the Prospectus; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims,
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except the pledge of the shares of certain subsidiaries of the Company
as collateral security for the obligations of AMF Bowling Worldwide,
Inc., a Delaware Corporation and indirect wholly owned subsidiary of
the Company ("AMF Bowling Worldwide") pursuant to the Second Amended
and Restated Credit Agreement, dated as of June 30, 1997, among AMF
Bowling Worldwide, the lenders parties thereto, Xxxxxxx Sachs Credit
Partners L.P. and Citicorp Securities, Inc., as Arrangers, Xxxxxxx
Sachs Credit Partners L.P., as Syndication Agent, Citibank, N.A., as
Administrative Agent, and Citicorp USA, Inc., as Collateral Agent, as
in effect on the date hereof (the "Second Amended and Restated Credit
Agreement") and as amended and restated as the Third Amended and
Restated Credit Agreement, dated as of November 3, 1997, among AMF
Bowling Worldwide, such lenders and such agents (the "Third Amended and
Restated Credit Agreement"); and except as set forth in the Prospectus,
there are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens related to
or entitling any person to purchase or otherwise to acquire any shares
of the capital stock of, or other ownership interest in, the Company or
any of its subsidiaries;
(i) The unissued Shares to be issued and sold by the Company
to the Underwriters hereunder and under the International Underwriting
Agreement have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein and in the
International Underwriting Agreement, will be duly and validly issued
and fully paid and non-assessable and will conform to the description
of the Stock contained in the Prospectus;
(j) Each of the Company and each of the subsidiaries of the
Company listed on the signature pages hereof (the "Designated
Subsidiaries") has all requisite corporate power and authority to
execute, deliver and perform their obligations under this Agreement and
the International Underwriting Agreement and to consummate the
transactions contemplated hereby and thereby, including without
limitation, in the case of the Company, the corporate power and
authority to issue, sell and deliver the Shares, as provided herein and
therein;
(k) The issue and sale of the Shares by the Company hereunder
and under the International Underwriting Agreement and the compliance
by the Company and each of the Designated Subsidiaries with all of the
provisions of this Agreement and the International Underwriting
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, sale/leaseback agreement, loan
agreement or other similar financing agreement or instrument or other
agreement or instrument to which the Company, any Designated Subsidiary
or any of their respective subsidiaries is a party or by which the
Company, any Designated Subsidiary or any of their respective
subsidiaries is bound or to which any of the property or assets of the
Company, any Designated Subsidiary or any of their respective
subsidiaries is subject, which conflict, breach, violation or default
could, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect, nor will such action result in any violation
of the provisions of the Certificate of Incorporation, By-laws or other
organizational documents of the Company, any Designated Subsidiary or
any of their respective subsidiaries or any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company, any Designated Subsidiary or any of
their respective subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Shares or the consummation by the Company
or any Designated Subsidiary of the transactions contemplated by this
Agreement and the International Underwriting Agreement, except (i) the
registration under the Act of the Shares and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters and the
International Underwriters and (ii) such consents, approvals,
authorizations, registrations or qualifications as may
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be required to permit the Company to retain its existing liquor and
gaming, lottery and gambling licenses;
(l) Each of the Company and each of its subsidiaries has
complied in all respects with all laws, regulations and orders
applicable to it or its businesses the violation of which would have a
Material Adverse Effect;
(m) Neither the Company nor any of its subsidiaries is (i) in
violation of its Certificate of Incorporation, By-laws or other
organizational documents or (ii) in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
sale/leaseback agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be
bound, which default would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(n) Except as would not, individually or in the aggregate,
have a Material Adverse Effect, (i) each of the Company and each of its
subsidiaries has all certificates, consents, exemptions, orders,
permits, licenses, authorizations or other approvals (each, an
"Authorization") of and from, and has made all declarations and filings
with, all Federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals,
necessary or required to engage in the business currently conducted by
it in the manner described in the Prospectus; (ii) all Authorizations
required pursuant to clause (i) of this paragraph are valid and in full
force and effect; and (iii) each of the Company and each of its
subsidiaries is in compliance in all material respects with the terms
and conditions of all such Authorizations and with the rules and
regulations of the regulatory authorities and governing bodies having
jurisdiction with respect thereto;
(o) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, under the caption
"Certain United States Federal Tax Consequences to Non-United States
Holders of Common Stock" in the prospectus relating to the
International Shares, and under the captions "Certain Transactions",
"Description of Certain Indebtedness" and "Underwriting", insofar as
they purport to describe the provisions of the laws and documents
referred to therein, are accurate in all material respects and
represent a fair summary of such laws and documents;
(p) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which,
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect, would interfere with or adversely affect the
issuance and sale of the Shares or would affect the validity of this
Agreement or the International Underwriting Agreement; and, to the best
of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(q) Neither the Company nor any of its subsidiaries is and,
after giving effect to the offering and sale of the Shares, neither the
Company nor any of its subsidiaries will be an "investment company" or
an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(r) The consolidated historical financial statements, together
with related schedules and notes, set forth in the Prospectus fairly
present, in all material respects, the consolidated financial position
and condition of the Company and its subsidiaries at the respective
dates indicated and the results of their operations and their cash
flows for the respective periods indicated, in accordance with United
States generally accepted accounting principles consistently applied
throughout such periods. The pro forma financial statements contained
in the Prospectus have been prepared on a
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basis consistent with such historical statements, except for the pro
forma adjustments specified therein, and give effect to assumptions
made on a reasonable basis and present fairly, in all material respects
and in accordance with such assumptions, the historical and proposed
transactions described in the Prospectus or contemplated by this
Agreement or the International Underwriting Agreement. The other
financial information and data included in the Prospectus, historical
and pro forma, are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the
books and records of the Company and its subsidiaries;
(s) Except as set forth in the Prospectus, neither the Company
or any of its subsidiaries has violated any applicable existing
federal, state, local or international laws and regulations relating to
protection of human health or the environment or imposing liability or
standards of conduct concerning any Hazardous Material ("Environmental
Laws"); lacks any permits, licenses or other approvals required of it
under applicable Environmental Laws; or is violating any term or
condition of any such permit, license or approval, except, in each
case, for any instances of violation, lack or noncompliance that,
either individually or in the aggregate, would 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, 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 law relating to
protection of human health or the environment or imposing liability or
standards of conduct concerning any such chemical material, waste or
substance;
(t) Each of the Company and each of its subsidiaries owns or
possesses or has 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, the "Intellectual Property") presently employed by it in
connection with, and material to, individually or in the aggregate, the
operation of the businesses now operated by it, and, except as
described in the Prospectus, none of the Company or any of its
subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to the foregoing which,
individually or in the aggregate, would reasonably be expected to
result in a Material Adverse Effect. The use of such Intellectual
Property in connection with the business and operations of the Company
and each of its subsidiaries does not infringe on the rights of any
person, except any such infringements that, individually or in the
aggregate, would not result in a Material Adverse Effect;
(u) All tax returns required to be filed by the Company or any
of its subsidiaries in any jurisdiction have been timely and duly
filed, other than those filings being contested in good faith, except
where the failure to so file any such returns, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect. There are no tax returns of the Company or any of its
subsidiaries that are currently being audited by state, local or
federal taxing authorities or agencies (and with respect to which the
Company or any of its subsidiaries has received notice), where the
findings of such audit would reasonably be expected to result in a
Material Adverse Effect. All taxes, including withholding taxes,
penalties and interest, assessments, fees and other charges due or
claimed to be due from such entities have been paid, other than those
being contested in good faith and for which adequate reserves have been
provided or those currently payable without penalty or interest and
other than those that are not material or that would not result in a
Material Adverse Effect;
(v) Each of the Company and each of its subsidiaries maintains
insurance covering its properties, operations, personnel and businesses
which insures against such losses and risks as are adequate in
accordance with its reasonable business judgment to protect the Company
and each
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of its subsidiaries and their businesses. None of the Company or any of
its subsidiaries has received notice from any insurer or agent of such
insurer that substantial capital improvements or other expenditures
will have to be made in order to continue such insurance. All such
insurance is outstanding and duly in force on the date hereof and will
be outstanding and duly in force at each Time of Delivery, except for
any failures to be so in force as would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect;
(w) No labor dispute with the employees of the Company or any
of its subsidiaries exists or, to the knowledge of the Company or any
of its subsidiaries, is imminent except any such disputes as could not,
individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect; and neither the Company nor or any of its
subsidiaries is aware of any existing or imminent labor disturbance by
the employees of any of its principal suppliers, manufacturers or
contractors which could reasonably be expected to result in a Material
Adverse Effect;
(x) There are no holders of securities of the Company or any
of its subsidiaries who, by reason of the execution of this Agreement
or the International Underwriting Agreement by the Company or any of
its subsidiaries, as the case may be, or the consummation of the
transactions contemplated hereby and thereby, have the right to request
or demand the Company or any of its subsidiaries to register under the
Act or analogous foreign laws and regulations any securities held by
them, except (i) the Registration Rights Agreement, dated as of March
21, 1996, by and among the Company, certain guarantors of the
securities referred to therein and Xxxxxxx, Xxxxx & Co., and (ii) the
Registration Rights Agreement, dated as of April 30, 1996, by and among
the Company and certain of its stockholders as of such date, as amended
to the date hereof; and
(y) Each of Xxxxxx Xxxxxxxx LLP, who have certified certain
financial statements of the Company and its subsidiaries, Price
Waterhouse LLP, who have certified certain financial statements of the
predecessor to the Company and its subsidiaries and of Fair Lanes, Inc.
and its subsidiaries, and Todres & Scheiffer, who have certified
certain financial statements of Charan Industries, Inc., are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
Furthermore, the Company represents and warrants to Xxxxxx Xxxxxxx that
(i) the Registration Statement, the Prospectus and any preliminary prospectus
comply, and any further amendments or supplements thereto will comply, with any
applicable laws or regulations of foreign jurisdictions in which the Prospectus
or any preliminary prospectus, as amended, or supplemented, if applicable, are
distributed in connection with the Directed Share Program, and (ii) no
authorization, approval, consent, license, order, registration or qualification
of or with any government, governmental instrumentality or court, other than
such as have been obtained, is necessary under the securities laws and
regulations of foreign jurisdictions in which the Directed Shares are offered
outside the United States.
2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $........................, the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto and
(b) in the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as provided below, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the purchase price
per share set forth in clause (a) of this Section 2, that portion of the number
of Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction, the numerator of which is the
maximum number of Optional Shares which such Underwriter is entitled to purchase
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Shares that all of the
Underwriters are entitled to purchase hereunder.
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The Company hereby grants to the Underwriters the right to purchase at
their election up to 1,500,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 5
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. The Company hereby confirms its engagement of Xxxxxx Xxxxxxx as, and
Xxxxxx Xxxxxxx hereby confirms its agreement with the Company to render services
as, a "qualified independent underwriter" within the meaning of Section 2(o) of
Rule 2720 of the National Association of Securities Dealers, Inc. (the "NASD")
with respect to the offering and sale of the Shares. Xxxxxx Xxxxxxx in its
capacity as qualified independent underwriter and not otherwise, is referred to
herein as the "QIU".
4. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as Xxxxxxx, Sachs & Co. may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by
or on behalf of the Company to Xxxxxxx, Xxxxx & Co., for the account of
such Underwriter, against payment by or on behalf of such Underwriter
of the purchase price therefor by certified or official bank check or
checks, payable to the order of the Company in Federal (same day)
funds. The Company will cause the certificates representing the Shares
to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) with respect
thereto at the office of Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Shares,
9:30 a.m., New York City time, on ............., 1997 or such other
time and date as Xxxxxxx, Xxxxx & Co. and the Company may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York
City time, on the date specified by Xxxxxxx, Sachs & Co. in the written
notice given by Xxxxxxx, Xxxxx & Co. of the Underwriters' election to
purchase such Optional Shares, or such other time and date as Xxxxxxx,
Sachs & Co. and the Company may agree upon in writing. Such time and
date for delivery of the Firm Shares is herein called the "First Time
of Delivery", such time and date for delivery of the Optional Shares,
if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a
"Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 8 hereof,
including the cross receipt for the Shares and any additional documents
reasonably requested by the Underwriters pursuant to Section 8(j)
hereof, will be delivered at the offices of Xxxxxxxx & Xxxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing Location"), and
the Shares will be delivered at the Designated Office, all at such Time
of Delivery. A meeting will be held at the Closing Location at
.......p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto. For the purposes of this
Section 5, "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law
or executive order to close.
6. The Company agrees with each of the Underwriters:
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(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish you with copies thereof; to advise you, promptly after
it receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus in
New York City in such quantities as you may reasonably request, and, if
the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time
any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such period to
amend or supplement the Prospectus in order to comply with the Act, to
notify you and upon your request to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as
you may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the
Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as you may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, directly or indirectly, not to offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder and under
the International Underwriting Agreement, any shares of Stock or any
securities of the Company that are substantially
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similar to the Shares, including but not limited to any securities that
are convertible into or exchangeable for, or that represent the right
to receive, Stock or any such substantially similar securities (other
than pursuant to the AMF Bowling, Inc. 1996 Stock Incentive Plan as in
effect on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement),
and including but not limited to entering into any cash-settled or
physically settled hedging transaction relating to the Stock, without
your prior written consent;
(f) To furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each
of the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the effective date of the Registration
Statement), consolidated summary financial information of the Company
and its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders,
and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished
to its stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement and the International
Underwriting Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange (the "Exchange");
(j) To file with the Commission such reports on Form SR as may
be required by Rule 463 under the Act;
(k) If the Company elects to rely upon Rule 462(b), to file a
Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement, and at the time of filing either to pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
to give irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) under the Act;
(l) In connection with the Directed Share Program, to ensure
that the Directed Shares will be restricted to the extent required by
the NASD or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. Xxxxxx Xxxxxxx will notify
the Company as to which Participants will need to be so restricted. The
Company will direct the transfer agent to place stop transfer
restrictions upon such securities for such period of time; and
(m) To pay all fees and disbursements of counsel incurred by
the Underwriters in connection with the Directed Share Program and all
stamp duties, similar taxes or duties or other taxes, if any, incurred
by the Underwriters in connection with the Directed Share Program.
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Furthermore, the Company covenants with Xxxxxx Xxxxxxx that the Company
will comply with all applicable securities and other applicable laws, rules and
regulations in each foreign jurisdiction in which the Directed Shares are
offered in connection with the Directed Share Program.
7. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers, except as otherwise specified in
Section 6(c) hereof; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the International Underwriting Agreement, the
Agreement between Syndicates, the Selling Agreement, the Blue Sky Memorandum,
closing documents (including compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iii)
all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 6(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky survey; (iv) all fees and
expenses in connection with listing the Shares on the Exchange; (v) the filing
fees incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Shares; (vi) the cost
of preparing stock certificates; (vii) the cost and charges of any transfer
agent or registrar; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 9 and 14 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
stock transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
8. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 6(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall
have furnished to you such opinion or opinions, dated such Time of
Delivery, with respect to such matters as you may reasonably request,
and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company,
shall have furnished to you their written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and
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authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have been duly and validly
authorized and issued and are fully paid and nonassessable;
except as set forth in the Prospectus and except for the
options granted to Xxxxxxx Xxxxxx pursuant to the Stock Option
Agreement, dated as of October 20, 1997, between the Company
and Xx. Xxxxxx, to such counsel's knowledge, there are no
outstanding subscriptions, rights, warrants, options, calls,
convertible securities, commitments of sale or liens related
to or entitling any person to purchase or otherwise to acquire
any shares of the capital stock of, or other ownership
interest in, the Company; and the Shares conform to the
description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so
as to require such qualification, except for such failures to
be so qualified or in good standing as would not, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect (such counsel being entitled to rely in respect
of the opinion in this clause upon opinions of local counsel
and in respect of matters of fact upon certificates of
officers of the Company, provided that such counsel shall
state that they believe that both you and they are justified
in relying upon such opinions and certificates);
(iv) Each of the Company and each of AMF Bowling
Worldwide, AMF Group Holdings Inc., a Delaware corporation,
AMF Bowling Holdings Inc., a Delaware corporation, AMF Bowling
Centers Holdings Inc., a Delaware corporation, and AMF
Worldwide Bowling Centers Holdings Inc., a Delaware
corporation (collectively, the "Delaware Subsidiaries"), has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware;
(v) To such counsel's knowledge and other than as set
forth or contemplated in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which,
individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect, would interfere with or
adversely affect the issuance and sale of the Shares or would
affect the validity of this Agreement or the International
Underwriting Agreement;
(vi) This Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by each of the Company and each of the Delaware
Subsidiaries;
(vii) The issue and sale of the Shares being
delivered at such Time of Delivery by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument (a) known to such
counsel and (b) to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject
and which is a "material contract" within
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the meaning of Item 601 of Regulation S-K promulgated under
the Exchange Act, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or
By-laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties, except that such
counsel need express no opinion as to any statute, order, rule
or regulation relating to liquor and gaming, lottery and
gambling licenses;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required under federal or New
York law or the General Corporation Law of the State of
Delaware for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated
by this Agreement and the International Underwriting
Agreement, except (i) the registration under the Act of the
Shares, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters and the
International Underwriters and (ii) such consents, approvals,
authorizations, orders, registrations or qualifications as may
be required to permit the Company to retain its existing
liquor and gaming, lottery and gambling licenses;
(ix) Each of the Company and each of the Delaware
Subsidiaries has all requisite corporate power and authority
to execute, deliver and perform its obligations under this
Agreement and the International Underwriting Agreement and to
consummate the transactions contemplated hereby and thereby,
including without limitation the corporate power and authority
to issue, sell and deliver the Shares as provided herein and
therein;
(x) To such counsel's knowledge, neither the Company
nor any of the Delaware Subsidiaries is in violation of its
Certificate of Incorporation or By-laws;
(xi) The statements set forth in the Prospectus under
the caption "Description of Capital Stock", insofar as they
purport to constitute a summary of the terms of the Stock,
under the caption "Certain United States Federal Tax
Consequences to Non-United States Holders of Common Stock" in
the prospectus relating to the International Shares, and under
the caption "Description of Certain Indebtedness", insofar as
they purport to describe the provisions of the laws and
documents referred to therein, are accurate in all material
respects and represent a fair summary of such provisions;
(xii) Neither the Company nor any of its subsidiaries
is an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act; and
(xiii) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and
the rules and regulations thereunder, although they do not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in
the opinion in subsection (xi) of this Section 8(c); they have
no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related statements and related
schedules and other financial data therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a
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material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its
date, the Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules and
other financial data therein, as to which such counsel need
express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading or that, as of such
Time of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial
data therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and they do not know of
any amendment to the Registration Statement required to be
filed or of any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described
as required;
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the
laws of the State of New York, the General Corporation Law of the State
of Delaware, and the federal laws of the United States.
(d) Hirschler, Fleischer, Xxxxxxxx, Xxx & Xxxxx P.C., counsel
for the Company, shall have furnished to you their written opinion,
dated such Time of Delivery, in form and substance satisfactory to you,
to the effect that:
(i) Each of the Designated Subsidiaries incorporated
in the State of Virginia has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation; each such
subsidiary has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any
such jurisdiction; all of the issued shares of capital stock
of each such subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable, and are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims, except the pledge of
the shares of certain subsidiaries of the Company as
collateral security for the obligations of AMF Bowling
Worldwide pursuant to the Second Amended and Restated Credit
Agreement as in effect on the date hereof and as amended and
restated as the Third Amended and Restated Credit Agreement;
and except as set forth in the Prospectus, based on an
examination of the corporate records and minute books, there
are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens
related to or entitling any person to purchase or otherwise to
acquire any shares of the capital stock of, or other ownership
interest in, any such subsidiary (such counsel being entitled
to rely in respect of the opinion in this clause upon opinions
of local counsel and in respect to matters of fact upon
certificates of officers of the Company or its subsidiaries,
provided that such counsel shall state that they believe that
both you and they are justified in relying upon such opinions
and certificates);
(ii) This Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by each of the Designated Subsidiaries incorporated
in the Commonwealth of Virginia;
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(iii) Each of the Designated Subsidiaries
incorporated in the Commonwealth of Virginia has all requisite
corporate power and authority to execute, deliver and perform
its obligations under this Agreement and the International
Underwriting Agreement and to consummate the transactions
contemplated hereby and thereby;
(iv) To such counsel's knowledge, none of the
Designated Subsidiaries incorporated in the Commonwealth of
Virginia is in violation of its Certificate of Incorporation,
By-laws or other organizational documents;
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the
laws of the Commonwealth of Virginia and the federal laws of the United
States.
(e) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, Xxxxxx Xxxxxxxx LLP shall have furnished to you
a letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, to the effect set forth in
Annex I hereto (an executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a
draft of the form of letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement and as of
each Time of Delivery is attached as Annex I(b) hereto), and each of
Price Waterhouse LLP and Todres & Scheiffer, shall have furnished to
you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set
forth in Annex II hereto (executed copies of the letters delivered
prior to the execution of this Agreement are attached as Annexes
II(a)(1) and (2) hereto and drafts of the forms of letters to be
delivered on the effective date of any post-effective amendment to the
Registration Statement and as of each Time of Delivery are attached as
Annexes II(b)(1) and (2) hereto);
(f) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have
been any change in the capital stock, short-term debt or long-term debt
of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of
which, in any such case described in Clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(h) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the
Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State
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authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(i) The Shares to be sold at such Time of Delivery shall have
been duly listed, subject to notice of issuance, on the Exchange;
(j) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each officer or director of the
Company or any of its subsidiaries who holds, directly or indirectly,
any shares of Stock (or any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock), and
each other person or entity that holds, directly or indirectly, any
shares of Stock (or any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock)
constituting more than 1% of the shares of the Stock outstanding on the
date of this Agreement, substantially to the effect set forth in
Subsection 6(e) hereof in form and substance satisfactory to you;
(k) The Third Amended and Restated Credit Agreement shall have
become effective at or before the First Time of Delivery;
(l) The Company shall have complied with the provisions of
Section 6(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(m) The Company shall have furnished or caused to be furnished
to you at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of its obligations hereunder
to be performed at or prior to such Time of Delivery, as to the matters
set forth in subsections (a) and (e) of this Section and as to such
other matters as you may reasonably request.
9. (a) The Company and the Designated Subsidiaries, jointly and
severally, will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus,
or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that the Company and the
Designated Subsidiaries shall 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 an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Xxxxxxx, Xxxxx &
Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the
Company and the Designated Subsidiaries against any losses, claims,
damages or liabilities to which the Company or the Designated
Subsidiaries may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon
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an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein 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 any Preliminary Prospectus,
the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Xxxxxxx, Sachs &
Co. expressly for use therein; and will reimburse the Company and the
Designated Subsidiaries for any legal or other expenses reasonably
incurred by the Company and the Designated Subsidiaries in connection
with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, which consent
shall not be unreasonably withheld, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent
of the indemnified party, which consent shall not be unreasonably
withheld, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action
or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company and the Designated Subsidiaries on the one hand and the
Underwriters on the other from the offering of the Shares. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
and the Designated Subsidiaries on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds
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from the offering of the Shares purchased under this Agreement (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters
with respect to the Shares purchased under this Agreement, in each case
as set forth in the table on the cover page of the Prospectus relating
to such Shares. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company and the Designated
Subsidiaries on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company, the Designated Subsidiaries and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this
subsection (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 above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include 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 subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages 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 in this subsection (d)
to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company and the Designated
Subsidiaries under this Section 9 shall be in addition to any liability
which the Company and the Designated Subsidiaries may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 9 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any,
who controls the Company or any Designated Subsidiary within the
meaning of the Act.
10. The Company and the Designated Subsidiaries, jointly and severally,
will indemnify and hold harmless Xxxxxx Xxxxxxx and each person, if any, who
controls Xxxxxx Xxxxxxx within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act ("Xxxxxx Xxxxxxx Entities")
from and against any and all losses, claims, damages and liabilities (i) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the prospectus wrapper material prepared by or with the consent of the
Company for distribution in foreign jurisdictions in connection with the
Directed Share Program attached to the Prospectus or any 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 statement therein, when
considered in conjunction with the Prospectus or any applicable preliminary
prospectus, not misleading, (ii) caused by the failure of any Participant to pay
for and accept delivery of the Shares which, immediately following the
effectiveness of the Registration Statement, were subject to a properly
confirmed agreement to purchase, or (iii) arising out of or in connection with
the Directed Share Program, and will reimburse Xxxxxx Xxxxxxx for any legal or
other expenses reasonably incurred by Xxxxxx Xxxxxxx in connection with
investigating or defending any action or claim relating to the foregoing as such
expenses are incurred, provided that, the Company shall not be responsible under
this subparagraph (iii) for any losses, claim, damages or liabilities (or
expenses relating thereto) that are finally judicially determined to have
resulted from the bad faith or gross negligence of Xxxxxx Xxxxxxx Entities.
Notwithstanding anything contained in this Agreement to the contrary, if
indemnity may be sought pursuant to this Section 10 in respect
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of any action or proceeding, then in addition to any separate firm for the
indemnified parties pursuant to Section 9 or Section 11 hereof, the indemnifying
party shall be liable for the reasonable fees and expenses of not more than one
separate firm (in addition to any local counsel) for Xxxxxx Xxxxxxx for the
defense of any losses, claims, damages and liabilities arising out of the
Directed Share Program, and all persons, if any, who control Xxxxxx Xxxxxxx
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act.
11. (a) The Company and the Designated Subsidiaries, jointly and
severally, will indemnify and hold harmless Xxxxxx Xxxxxxx, in its
capacity as QIU, against any losses, claims, damages or liabilities,
joint or several, to which the QIU may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the QIU for any
legal or other expenses reasonably incurred by the QIU in connection
with investigating or defending any such action or claim as such
expenses are incurred.
(b) The Company and the Designated Subsidiaries, jointly and
severally, will also indemnify and hold harmless Xxxxxx Xxxxxxx from
and against any and all losses, claims, damages, liabilities and
judgments incurred as a result of Xxxxxx Xxxxxxx'x participation as a
"qualified independent underwriter" within the meaning of Rule 2720 of
the NASD's Conduct Rules in connection with the offering of the Shares
except for any losses, claims, damages, liabilities and judgments found
in a final judgment by a court to have resulted from Xxxxxx Xxxxxxx'x
or such controlling person's, willful misconduct or gross negligence.
(c) Promptly after receipt by the QIU under subsection (a) or
(b) above of notice of the commencement of any action, the QIU shall,
if a claim in respect thereof is to be made against the Company or any
Designated Subsidiary under such subsection, notify the Company in
writing of the commencement thereof; but the omission so to notify the
Company shall not relieve the Company or any Designated Subsidiary from
any liability which it may have to the QIU otherwise than under such
subsection. In case any such action shall be brought against the QIU
and it shall notify the Company of the commencement thereof, the
Company and the Designated Subsidiaries shall be entitled to
participate therein and, to the extent that they shall wish, jointly
with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to the QIU (who shall not,
except with the consent of the QIU, which consent shall not be
unreasonably withheld, be counsel to the Company or any Designated
Subsidiary), and, after notice from the Company or any Designated
Subsidiary to the QIU of its election so to assume the defense thereof,
the Company or such Designated Subsidiary, as the case may be, shall
not be liable to the QIU under such subsection for any legal expenses
of other counsel or any other expenses, in each case subsequently
incurred by the QIU, in connection with the defense thereof other than
reasonable costs of investigation. Neither the Company nor any
Designated Subsidiary shall, without the written consent of the QIU,
which consent shall not be unreasonably withheld, effect the settlement
or compromise of, or consent to the entry of any judgment with respect
to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the QIU is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the QIU from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of the QIU.
(d) If the indemnification provided for in this Section 11 is
unavailable to or insufficient to hold harmless Xxxxxx Xxxxxxx, in its
capacity as QIU, under subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then
19
20
the Company and the Designated Subsidiaries shall contribute to the
amount paid or payable by the QIU as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company and the Designated Subsidiaries on the one hand and the
QIU on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the QIU failed to give the notice
required under subsection (c) above, then the Company and the
Designated Subsidiaries shall contribute to such amount paid or payable
by the QIU in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and
the Designated Subsidiaries on the one hand and the QIU on the other in
connection with the statements, acts or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Designated
Subsidiaries on the one hand and the QIU on the other shall be deemed
to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company, as set
forth in the table on the cover page of the Prospectus, bear to the fee
payable to the QIU. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one
hand or the QIU on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Designated Subsidiaries
and the QIU agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro
rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by the QIU as a result of
the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by the QIU in
connection with investigating or defending any such action or claim. 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.
(e) The obligations of the Company and the Designated
Subsidiaries under this Section 11 shall be in addition to any
liability which the Company or the Designated Subsidiaries may
otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls the QIU within the meaning of the
Act.
12. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another party
or other parties to purchase such Shares on the terms contained herein.
If within thirty-six hours after such default by any Underwriter you do
not arrange for the purchase of such Shares, then the Company shall be
entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to you to purchase
such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged
for the purchase of such Shares, or the Company notifies you that it
has so arranged for the purchase of such Shares, you or the Company
shall have the right to postpone such Time of Delivery for a period of
not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company as provided in subsection (a) above,
20
21
the aggregate number of such Shares which remains unpurchased does not
exceed one-eleventh of the aggregate number of all the Shares to be
purchased at such Time of Delivery, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number
of Shares which such Underwriter agreed to purchase hereunder at such
Time of Delivery and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of
Shares which such Underwriter agreed to purchase hereunder) of the
Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of
the aggregate number of all the Shares to be purchased at such Time of
Delivery, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of
the Underwriters to purchase and of the Company to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to
be borne by the Company and the Underwriters as provided in Section 7
hereof and the indemnity and contribution agreements in Section 9
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
13. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as 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 any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
14. If this Agreement shall be terminated pursuant to Section 12
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Sections 7 and 9 hereof; but if for any other reason any
Shares are not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Shares not so delivered, but the Company
shall then be under no further liability to any Underwriter in respect of the
Shares not so delivered except as provided in Sections 7 and 9 hereof.
15. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives of the Underwriters.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary with copies sent to GS Capital
Partners II, L.P., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
X. Xxxxxxxxx, Esq., and Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxx, Esq.; provided, however, that
any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied
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to the Company by you upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
16. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 9 and 13 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
17. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
18. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
19. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
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If the foregoing is in accordance with your understanding, please sign
and return to us seven counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters (U.S. Version), the form of which shall be
furnished to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
AMF Bowling, Inc.
By:.........................................
Name:
Title:
AMF Group Holdings Inc.
By:.........................................
Name:
Title:
AMF Bowling Worldwide, Inc.
By:.........................................
Name:
Title:
AMF BCO-China, Inc.
By:.........................................
Name:
Title:
AMF BCO-France One, Inc.
By:.........................................
Name:
Title:
AMF BCO-France Two, Inc.
By:.........................................
Name:
Title:
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24
AMF BCO-UK One, Inc.
By:.........................................
Name:
Title:
AMF BCO-UK Two, Inc.
By:.........................................
Name:
Title:
AMF Beverage Company of Oregon, Inc.
By:.........................................
Name:
Title:
AMF Beverage Company of W. Va., Inc.
By:.........................................
Name:
Title:
AMF Bowling Centers, Inc.
By:.........................................
Name:
Title:
AMF Bowling Centers China, Inc.
By:.........................................
Name:
Title:
AMF Bowling Centers International Inc.
By:.........................................
Name:
Title:
24
25
AMF Bowling Centers (Aust)
International Inc.
By:.........................................
Name:
Title:
AMF Bowling Centers (Canada)
International Inc.
By:.........................................
Name:
Title:
AMF Bowling Centers (Hong Kong)
International Inc.
By:.........................................
Name:
Title:
AMF Bowling Centers Holdings Inc.
By:.........................................
Name:
Title:
AMF Bowling Centers Spain Inc.
By:.........................................
Name:
Title:
AMF Bowling Centers Switzerland Inc.
By:.........................................
Name:
Title:
AMF Bowling Products, Inc.
By:.........................................
Name:
Title:
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26
AMF Bowling Holdings Inc.
By:.........................................
Name:
Title:
AMF Bowling Mexico Holdings, Inc.
By:.........................................
Name:
Title:
AMF Worldwide Bowling Centers Holdings Inc.
By:.........................................
Name:
Title:
Boliches AMF, Inc.
By:.........................................
Name:
Title:
Xxxx River Corporation
By:.........................................
Name:
Title:
Xxxx Xxxxx Lenaxa, Inc.
By:.........................................
Name:
Title:
American Recreation Centers Inc.
By:.........................................
Name:
Title:
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27
ARC Properties, Inc.
By:.........................................
Name:
Title:
ARC Games, Inc.
By:.........................................
Name:
Title:
Belmont Catering, Inc.
By:.........................................
Name:
Title:
Peninsula Bowling Corporation
By:.........................................
Name:
Title:
Burleigh Recreation, Inc.
By:.........................................
Name:
Title:
Xxxxxx Recreation, Inc.
By:.........................................
Name:
Title:
Thunder Bowl, Inc.
By:.........................................
Name:
Title:
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28
H & B, Inc.
By:.........................................
Name:
Title:
Florist Recreation, Inc.
By:.........................................
Name:
Title:
Waukesha Lanes, Inc.
By:.........................................
Name:
Title:
Mid-America ARC, Inc.
By:.........................................
Name:
Title:
300, Inc.
By:.........................................
Name:
Title:
American Red Carpet
By:.........................................
Name:
Title:
Triangle Bowl Associates
By:.........................................
Name:
Title:
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29
Mid-America Associates
By:.........................................
Name:
Title:
Xxxxxxx Xxxxxx Golf Company, Inc.
By:.........................................
Name:
Title:
Xxxxxxx Xxxxxx Golf-Water Tower, Inc.
By:.........................................
Name:
Title:
MJG-X'Xxxx, Inc.
By:.........................................
Name:
Title:
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30
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxx & Company
Xxxxxxxx & Co. Inc.
By:.........................................
(Xxxxxxx, Sachs & Co.)
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SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
-------------------------- ------------------------------
Xxxxxxx, Xxxxx & Co...............................
Xxxxxx Xxxxxxx & Co. Incorporated.................
Xxxxx & Company...................................
Xxxxxxxx & Co. Inc................................
[NAMES OF OTHER UNDERWRITERS].....................
-------------------------- ------------------------------
Total.................................... ========================== ==============================
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ANNEX I
Pursuant to Section 8(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the unaudited consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been furnished to the representatives of
the Underwriters (the "Representatives") and are attached hereto;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus as indicated in their reports thereon copies
of which are attached hereto and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility
for financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations, nothing came to their attention that caused them
to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus agrees with the corresponding amounts (after restatements
where applicable) in the audited consolidated financial statements for
such five fiscal years which were included or incorporated by reference
in the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
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(A) (i) the unaudited consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published
rules and regulations, or (ii) any material modifications
should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included in the Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited consolidated financial statements
included in the Prospectus;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest financial statements
included in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts
shown in the latest balance sheet included in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in Clause (E) there were any
decreases in consolidated net revenues or operating profit or
the total or per share amounts of consolidated net income or
other items specified by the Representatives, or any increases
in any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in each case for decreases or
increases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting
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an examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives, which are derived from
the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus, or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the
Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
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ANNEX II
Pursuant to Section 8(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder; and
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the unaudited consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been furnished to the representatives of
the Underwriters (the "Representatives") and are attached hereto.
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