--------------------------------------------------------------------------------
4,000,000 Shares
Xxxxxxxxxx Industries Trust I
(a Delaware Business Trust)
___% Cumulative Trust Preferred Securities
(Liquidation Amount of $10 per Trust Preferred Security)
UNDERWRITING AGREEMENT
________ __, 1998
EVEREN Securities, Inc.
Advest, Inc.
&
Black & Company
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TABLE OF CONTENTS
Page
----
1. The Shares. ........................................................1
2. Registration Statement and Prospectus................................2
3. Agreements to Sell and Purchase......................................2
4. Agreements of the Offerors as to Delivery and Payment................3
5. Further Agreements of the Offerors...................................4
6. Representations and Warranties.......................................8
7. Indemnification.....................................................19
8. Conditions of the Obligations of the Underwriters...................22
9. Effective Date of Agreement, Termination and Defaults...............26
10. Effectiveness of Registration Statement.............................27
11. Miscellaneous.......................................................27
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4,000,000 Shares
Xxxxxxxxxx Industries Trust I
(a Delaware Business Trust)
____% Cumulative Trust Preferred Securities
(Liquidation Amount of $10 per Trust Preferred Security)
UNDERWRITING AGREEMENT
---------- --, 1998
EVEREN Securities, Inc.
Advest, Inc.
Black & Company
As Representatives of the Several Underwriters
c/o EVEREN Securities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
Xxxxxxxxxx Industries, Inc., an Oregon corporation (the "Company"), and its
financing subsidiary, Xxxxxxxxxx Industries Trust I, a Delaware business trust
(the "Trust," and together with the Company, the "Offerors"), confirm their
agreements with the several underwriters listed in Schedule I hereto (the
"Underwriters"), for whom EVEREN Securities, Inc. and Advest, Inc.
(collectively, the "Representatives") have been duly authorized to act as
representatives, as follows:
1. The Shares. Subject to the terms and conditions set forth in this
agreement (the "Agreement"), the Trust proposes to issue and sell to the
Underwriters 4,000,000 shares of __% Cumulative Trust Preferred Securities
having a Liquidation Amount of $10 per share (the "Trust Preferred Securities"),
to be issued under the Trust Agreement (as defined below), the terms of which
are more fully described in the Prospectus (as defined below). Such 4,000,000
shares of Trust Preferred Securities proposed to be sold by the Trust are
hereinafter referred to as the "Firm Shares." The Trust also proposes to grant
to the Underwriters an option to purchase up to 600,000 additional shares of
Trust Preferred Securities (the "Additional Shares") solely for the purpose of
covering over-allotments, if any, if requested by the Underwriters as provided
in Section 3 hereof. The Firm Shares and the Additional Shares are herein
collectively called the "Shares."
The Offerors hereby confirm their agreements with the Underwriters as
follows:
2. Registration Statement and Prospectus. The Offerors have prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 (File No. 333------) including a
prospectus, relating to the Shares, the --% Junior Subordinated Deferrable
Interest Debentures due 2028 of the Company (the "Debentures"), and the
Guarantee pursuant to the Guarantee Agreement (as defined below) for the benefit
of the Trust Preferred Securities (the "Guarantee"). To the extent the
registration statement has been amended, each such amendment has been prepared
and filed with the Commission. Such registration statement, as amended, at the
time when it became effective, and any registration statement filed with the
Commission pursuant to Rule 462(b) under the Act, at the time when it becomes
effective, including all financial schedules and exhibits thereto and all of the
information (if any) deemed to be part of the registration statements at the
time of effectiveness pursuant to Rule 430A under the Act ("Rule 430A"), is
hereinafter referred to as the "Registration Statement;" the prospectus in the
form first provided to the Underwriters by the Offerors for use in connection
with the offering and sale of the Shares (whether or not required to be filed
pursuant to Rule 424(b) under the Act ("Rule 424(b)")), and including all
documents incorporated or deemed incorporated by reference therein, is
hereinafter referred to as the "Prospectus," except that if any revised
prospectus shall be provided to the Underwriters by the Offerors for use in
connection with the offering of the Shares that differs from the Prospectus
(whether or not any such revised prospectus is required to be filed by the
Offerors pursuant to Rule 424(b)), the term "Prospectus" shall refer to the
revised prospectus from and after the time it is first provided to the
Underwriters for such use. Each preliminary prospectus included in the
Registration Statement prior to the time it became effective is herein referred
to as a "Preliminary Prospectus."
3. Agreements to Sell and Purchase.
(a) On the basis of the representations and warranties contained in this
Agreement, and subject to the terms and conditions hereof: (i) the Offerors,
jointly and severally, agree that the Trust will issue and sell to the
Underwriters, at a price of $10 per Share (the "Purchase Price"), 4,000,000
newly issued Firm Shares; and (ii) each Underwriter agrees, severally and not
jointly, to purchase from the Trust, at the Purchase Price, the aggregate number
of Firm Shares set forth opposite the name of such Underwriter in Schedule I
hereto.
(b) On the basis of the representations and warranties contained in this
Agreement, and subject to the terms and conditions hereof: (i) the Offerors,
jointly and severally, agree that the Trust will issue and sell to the
Underwriters, at the Purchase Price, up to 600,000 newly issued Additional
Shares; and (ii) the Underwriters shall have the right, from time to time
(subject to the last sentence of Section 4(b)) to purchase from the Trust,
severally and not jointly, up to the aggregate number of Additional Shares at
the Purchase Price. Additional Shares may be purchased as provided in Section 4
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase the
number of Additional Shares (subject to such adjustments to
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eliminate fractional shares as the Representatives may determine) that bears the
same proportion to the total number of Additional Shares to be purchased as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I bears to the total number of Firm Shares.
(c) The Offerors are advised by the Representatives that the Underwriters
propose to make a public offering of their prospective portions of the Shares as
soon after the Registration Statement and this Agreement become effective as in
the Representatives' judgment is advisable. In view of the fact that the
proceeds of the sale of the Shares (together with the entire proceeds from the
sale by the Trust to the Company of the Common Securities (as defined below))
will be used to purchase the Debentures, the Company hereby agrees to pay by
wire transfer of same day funds on the Closing Date and on each Option Closing
Date: (i) directly to the Underwriters, as compensation to the Underwriters for
their commitments hereunder, a commission of $0.40 per Share purchased by the
Underwriters and delivered by the Trust pursuant to this Agreement on such date
(the "Underwriting Commission"); (ii) directly to EVEREN Securities, Inc., as
compensation for its advisory services in connection with the structuring the
transactions contemplated hereby, a structuring fee of $0.10 per Share purchased
by the Underwriters and delivered by the Trust pursuant to this Agreement on
such date (the "Structuring Fee"); and (iii) directly to EVEREN Securities,
Inc., as compensation for its various unreimbursed costs and expenses in
connection with the transactions contemplated hereby, a non-accountable expense
allowance of $0.05 per Share purchased by the Underwriters and delivered by the
Trust pursuant to this Agreement on such date (the "Expense Allowance").
(d) Each of the Offerors covenants and agrees that it will not (other than
in connection with the transactions expressly contemplated by this Agreement),
directly or indirectly, for a period of 180 days after the date this Agreement
becomes effective, without the prior written consent of EVEREN Securities, Inc.
on behalf of the Underwriters, (1) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, or otherwise issue any shares of
Trust Preferred Securities or Debentures, or any securities convertible into or
exercisable or exchangeable for Trust Preferred Securities or Debentures, or any
equity securities substantially similar to the Trust Preferred Securities or any
debt securities substantially similar to the Debentures, or any securities
convertible into or exercisable or exchangeable for Trust Preferred Securities,
Debentures or such similar securities, or (2) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic consequences
of ownership of any of the foregoing securities, or (3) file any registration
statement relating to any of the foregoing securities on behalf of itself or any
other person.
4. Agreements of the Offerors as to Delivery and Payment. The Offerors,
jointly and severally, agree with each Underwriter that:
(a) Delivery to the Underwriters of and payment for the Firm Shares
shall be made at 10:00 A.M., New York City time, on the third full business day
(such time and date being referred to as the "Closing Date") following the date
of the initial public offering of the Firm Shares pursuant to this Agreement as
advised to the Representatives by the Offerors, at such place as the
Representatives shall designate.
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(b) Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at such place as the
Representatives shall designate, at 10:00 A.M., New York City time, on such date
or dates (individually, an "Option Closing Date" and collectively, the "Option
Closing Dates"), which may be the same as the Closing Date but shall in no event
be earlier than the Closing Date, as shall be specified in a written notice from
the Representatives to the Offerors of the Underwriters' determination to
purchase a number, specified in said notice, of Additional Shares. Any such
notice may be given at any time prior to the thirty-first (31st) day after the
date of this Agreement.
(c) Unless otherwise agreed, the Shares to be purchased by each
Underwriter in book-entry form and in authorized denominations and registered in
the name of the nominee of The Depository Trust Company ("DTC") shall be
delivered by or on behalf of the Offerors through the facilities of DTC for the
account of such Underwriter, against payment of the Purchase Price therefor by
wire transfer of same day funds to the Trust, or upon its order, to an account
designated by the Trust, with any transfer taxes payable upon initial issuance
or the transfer thereof duly paid by the Offerors for the respective accounts of
the Underwriters.
(d) Any or all of the Underwriters and/or EVEREN Securities, Inc., as
the case may be, may elected to receive the Underwriting Commission, Structuring
Fee and Expense Allowance payable to it by the Company by setoff against the
Purchase Price payable by it to the Trust, notice of which setoff shall be given
to the Offerors by EVEREN Securities, Inc.
5. Further Agreements of the Offerors. Each of the Offerors, jointly and
severally, also agrees with each Underwriter that:
(a) each Offeror will, if the Registration Statement has not
heretofore become effective under the Act, file an amendment to the Registration
Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective
amendment to the Registration Statement, as soon as practicable after the
execution and delivery of this Agreement, and will use its best efforts to cause
the Registration Statement or such post-effective amendment to become effective
at the earliest possible time; and each of the Offerors will comply fully and in
a timely manner with the applicable provisions of Rule 424(b), Rule 430A and the
other rules under the Act;
(b) each Offeror will advise the Underwriters promptly and, if
requested by the Representatives, shall confirm such advice in writing (and
provide copies of any relevant correspondence and other documents) to the
Representatives (i) when the Registration Statement has become effective, if and
when the Prospectus is sent for filing pursuant to Rule 424 under the Act and
when any post-effective amendment to the Registration Statement becomes
effective, (ii) of the receipt of any comments or correspondence from the
Commission that relate to the Registration Statement or requests by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement, or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or, to
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the best knowledge of the Offerors, of the threat or initiation of any
proceedings for such purpose by the Commission or any state securities
commission or other regulatory authority, and (iv) of the happening of any event
or information becoming known during the period referred to in paragraph
(e) below that makes any statement of a material fact made in the Registration
Statement untrue or that requires the making of any additions to or changes in
the Registration Statement (as amended or supplemented from time to time) in
order to make the statements therein not misleading or that makes any statement
of a material fact made in the Prospectus (as amended or supplemented from time
to time) untrue or that requires the making of any additions to or changes in
the Prospectus (as amended or supplemented from time to time) in order to make
the statements therein, not misleading; if at any time the Commission shall
issue or institute proceedings (or threaten to institute any such proceedings)
to issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory authority
shall issue or institute proceedings (or threaten to institute proceedings) to
issue an order suspending the qualification or exemption of the Shares under any
state securities or Blue Sky laws, each of the Offerors shall use their best
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time;
(c) each Offeror will furnish to each of the Representatives without
charge one signed copy of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits filed therewith,
and will furnish to the Representatives such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as the Representatives may reasonably request;
(d) each Offeror will not file any amendment or supplement to the
Registration Statement, whether before or after the time when it becomes
effective, or make any amendment or supplement to the Prospectus of which the
Representatives shall not previously have been advised and provided a copy a
reasonable period of time prior to the filing thereof and to which the
Representatives or their counsel shall reasonably object; and each Offeror will
prepare and file with the Commission, promptly upon the Representatives'
reasonable request, any amendment to the Registration Statement or supplement to
the Prospectus that may be necessary or advisable in connection with the
distribution of the Shares by the Representatives in their or their counsel's
reasonable opinion, and will use its best efforts to cause the same to become
effective as promptly as possible;
(e) promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as a prospectus is required by the
Act to be delivered in connection with the sales by an underwriter or a dealer
(in the reasonable written opinion of the Representatives' counsel, it being
understood that no opinion of the Representatives' counsel shall be necessary
for distribution of the Prospectus prior to or on the Closing Date), each
Offeror will furnish to each Representative, Underwriter and dealer without
charge as many copies of the Prospectus (and any amendment or supplement of the
Prospectus) as the Representatives or such Underwriters or dealers may
reasonably request for the purposes contemplated by the Act; each of the
Offerors consent to the use of the Prospectus and any amendment or supplement
thereto by any Underwriter or any dealer, both in connection with the offering
or sale of the Shares and for such period of time thereafter as the Prospectus
is required by the Act to be delivered in connection therewith;
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(f) if during the period specified in paragraph (e) any event shall
occur or information become known as a result of which in the reasonable opinion
of the Representatives' counsel it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in light of the
circumstances existing as of the date the Prospectus is delivered to a
purchaser, not misleading, or it is necessary to amend or supplement the
Prospectus to comply with any law, each Offeror will forthwith prepare and,
subject to paragraph 5(d) above, file with the Commission at the sole expense of
the Offerors an appropriate amendment or supplement to the Prospectus so that
the statements of any material facts in the Prospectus, as so amended and
supplemented, will not in light of the circumstances when it is so delivered, be
misleading, or so that the Prospectus will comply with law and each Offeror will
furnish to the Representatives and to such Underwriters and dealers as the
Representatives shall specify, at the sole expense of the Offerors, such number
of copies thereof as the Representatives or such Underwriters or dealers may
reasonably request;
(g) without limiting the generality of the foregoing clause (f), the
Offerors acknowledge and agree that if, prior to the exercise in full or
termination or expiration of the option to purchase the Additional Shares,
either Offeror incurs any liability or obligation, direct or contingent, or
enters into any material transaction, or otherwise takes any action or
experiences any change in situation or circumstances which may render the
Prospectus (as it then exits) misleading, the Offerors shall (i) promptly notify
EVEREN Securities, Inc. in writing of such event, such notice to explain the
nature and scope of such event in reasonable detail insofar as possible, and
(ii) forthwith prepare and, subject to paragraph 5(d) above, file with the
Commission at the sole expense of the Offerors an appropriate amendment to the
Registration Statement or supplement to the Prospectus, and (iii) at the sole
expense of the Offerors, reproduce and distribute such amendment or supplement
to such persons or institutions as EVEREN Securities, Inc. shall request;
(h) prior to any public offering of the Shares, each Offeror will
cooperate with the Representatives and counsel for the Representatives in
connection with the registration or qualification of the Shares for offer and
sale by the several Underwriters and by dealers under the state securities or
Blue Sky laws of such jurisdictions as the Representatives may request
(provided, that the Offerors shall not be obligated to qualify as a foreign
corporation or business trust in any jurisdiction in which it is not otherwise
required to be so qualified or to take any action which would subject it to
general consent to service of process in any jurisdiction in which it is not now
otherwise required to be so subject); the Offerors will continue such
qualification in effect so long as required by law for the distribution of the
Shares and will file such consents to service of process or other documents as
may be necessary in order to effect such registration or qualification
(provided, that the Offerors shall not be obligated to take any action that
would subject it to general consent to service of process in any jurisdiction in
which it is not now otherwise required to be so subject);
(i) each Offeror will not acquire any Trust Preferred Securities or
any capital stock of the Company prior to the exercise in full or termination or
expiration of the option to purchase the Additional Shares, nor will the Company
declare or pay any dividend or make any other distribution upon its common stock
(the "Common Stock") payable to
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stockholders of record on a date prior to the exercise in full or termination or
expiration of the option to purchase the Additional Shares;
(j) the Offerors will mail and make generally available to holders of
beneficial interests in the Trust and furnish to the Representatives as soon as
reasonably practicable a consolidated earnings statement covering a period of at
least 12 months beginning after the "effective date" (as defined in Rule 158
under the Act) of the Registration Statement (but in no event commencing later
than 90 days after such date) that will satisfy the provisions of Section 11(a)
of the Act and Rule 158 thereunder, if applicable to holders of beneficial
interests in the Trust;
(k) During the period of five (5) years after the date of this
Agreement, each Offeror will furnish to each of the Representatives a copy
(i) as soon as practicable after the filing thereof, of each report filed by it
with the Commission, any securities exchange or the National Association of
Securities Dealers, Inc. ("NASD"); (ii) as soon as practicable after the release
thereof, of each press release relating to either or both of the Offerors;
(iii) as soon as available, of each report of the Company mailed to the
Company's stockholders and each report of the Trust mailed to holders of
beneficial interests in the Trust; and (iv) as soon as available, such other
publicly available information concerning the Offerors as the Representatives
may reasonably request;
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(l) whether or not the transactions contemplated hereby are
consummated or this Agreement becomes effective as to all of its provisions or
is terminated, to pay (in addition to any Expense Allowance payable by the
Company pursuant to this Agreement) all costs, fees, expenses and taxes incident
to the performance by the Offerors of their obligations hereunder, including
(i) the preparation, printing, filing and distribution under the Act of the
Registration Statement (including financial statements and exhibits), each
Preliminary Prospectus, the Prospectus and all amendments and supplements to any
of them prior to or during the period specified in paragraph (e) above of this
Section 5, (ii) the word processing, reproduction and distribution of the Blue
Sky Survey and any related memoranda, correspondence and other documents
prepared and delivered by the Underwriters or their counsel (including in each
case the fees and disbursements of counsel for the Underwriters relating to such
preparation and delivery), (iii) the filing of notices of the offer and sale of
the Shares by the several Underwriters and by dealers under the securities or
Blue Sky laws of the several states (including in each case the fees and
disbursements of counsel for the Underwriters relating to such filings),
(iv) the filings and clearance with the NASD in connection with the offering and
sale of the Shares (including the fees and disbursements of counsel for the
Underwriters relating to such filings and clearance), (v) the approval for
quotation of the Shares on the American Stock Exchange, Inc., (vi) furnishing
such copies of the Registration Statement, each Preliminary Prospectus, the
Prospectus and all amendments and supplements thereto as may be requested by the
Representatives for use in connection with the offering or sale of the Shares by
the Underwriters or by dealers to whom the Shares may be sold, (vii) obtaining
the opinions to be provided pursuant to Section 8(f)-(h) of this Agreement,
(viii) the fees and expenses of the Property Trustee, the Delaware Trustee, the
Guarantee Trustee and the Indenture Trustee (each as defined below), including
the fees and disbursements of counsel for such trustees, (ix) the cost of
qualifying the Shares with DTC, and (x) the performance by the Offerors of all
of their other obligations under this Agreement; if the sale of the Shares
provided for
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herein is not consummated because the Underwriters exercise their right to
terminate this Agreement pursuant to Section 9 hereof and any of the following
have occurred during the term of this Agreement: (a) there has been any material
adverse change in the condition (financial or otherwise), earnings, affairs,
business or prospects of the Company; or (b) the Offerors shall refuse or be
unable to comply with any provision hereof (except as the result of a breach of
this Agreement by the Underwriters), the Offerors will promptly reimburse the
Underwriters upon demand for all reasonable out-of-pocket expenses (including
the fees and disbursements of counsel for the Underwriters) that shall have been
incurred by the Underwriters in connection with the proposed purchase and sale
of the Shares;
(m) each of the Offerors intends to use the net proceeds received by
it from the sale of the Shares being sold by the Trust in the manner specified
in the Prospectus;
(n) if, at the time of effectiveness of the Registration Statement,
any information shall have been omitted therefrom in reliance upon Rule 430A,
then immediately following the execution and delivery of this Agreement, each of
the Offerors will prepare, and file or transmit for filing with the Commission
in accordance with such Rule 430A and Rule 424(b), copies of an amended
prospectus, or, if required by such Rule 430A, a post-effective amendment to the
Registration Statement (including an amended prospectus), containing all
information so omitted;
(o) each of the Offerors will cause the Shares to be approved for
quotation, subject to notice of issuance or sale, on the American Stock
Exchange, Inc.; each of the Offerors will comply with all registration, filing
and reporting requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and American Stock Exchange, Inc. in connection with the
sale of the Shares; and
(p) each of the Offerors will use its best efforts to do and perform
all things required to be done and performed under this Agreement by it prior to
or after the Closing Date or any Option Closing Date, as the case may be, and to
satisfy all conditions precedent required to be satisfied under this Agreement
prior to the delivery of the Shares.
6. Representations and Warranties.
(a) The Offerors, jointly and severally, represent and warrant to each
Underwriter as of the date hereof, the Closing Date and each Option Closing Date
that:
(i) The Commission has not issued any order preventing or
suspending the use of any Prospectus relating to the proposed offering of the
Shares nor, to the best of the Offerors' knowledge, instituted or threatened any
proceedings for that purpose. The Registration Statement, on the date it became
effective, and the Prospectus and any amendment or supplement thereto, on the
date of filing thereof with the Commission (or if not filed, on the date
provided by the Offerors to the Underwriters in connection with the offering and
sale of the Shares) and at the Closing Date and each Option Closing Date
conformed or will conform with the requirements of the Act and the rules and
regulations promulgated thereunder (the "Rules and Regulations") and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules and
regulations promulgated thereunder (the "Trust Indenture Regulations"). The
Registration Statement, on
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the date it became effective, did not contain an untrue statement of material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading. The Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission (or if not filed, on
the date provided by the Offerors to the Underwriters in connection with the
offering and sale of the Shares) and at the Closing Date and each Option Closing
Date did not and will not include an untrue statement of material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The foregoing shall not apply to statements in or omissions from
the Registration Statement and the Prospectus made or omitted in reliance upon,
and in conformity with information relating to the Underwriters furnished in
writing to the Offerors by or on behalf of the Underwriters expressly for use
therein. The Offerors hereby acknowledge for all purposes under this Agreement
that the information furnished to the Offerors by or on behalf of the
Underwriters for use in the preparation of the Registration Statement or the
Prospectus or any amendment or supplement thereto (the "Underwriters'
Information") consists only of (A) the last paragraph of text set forth on the
outside front cover page of the Prospectus, (B) the stabilization and passive
market-making legends set forth on the [inside of the front cover page] of the
Prospectus, and (C) the statements set forth under the caption "Underwriting" in
the Prospectus.
(ii) The only subsidiaries of the Company (other than the Trust)
are as set forth on Exhibit A to this Agreement (singularly, a "Subsidiary" and
collectively, the "Subsidiaries"). The Company has been duly incorporated and is
a validly existing corporation in good standing under the laws of Oregon, with
full corporate power and authority to own or lease its properties and assets and
to conduct its business as described in the Registration Statement and the
Prospectus and is duly qualified to do business in each jurisdiction in which it
owns or leases real property or in which the conduct of its business or the
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not (i) have a material adverse effect on the
condition (financial or otherwise), business, assets, prospects, net worth or
results of operations of the Company and its Subsidiaries, taken as a whole, or
(ii) give rise (whether with notice or a lapse of time, or both, or otherwise)
to a default or event of default with respect to the Debentures (a "Material
Adverse Effect," and, when used with respect to the Trust, "Material Adverse
Effect" means any material adverse effect on the condition (financial or
otherwise), business, assets, prospects, net worth or results of operations of
the Trust, including without limitation any facts, events or circumstances which
would give rise (whether with notice or lapse of time, or both, or otherwise) to
a default or event of default with respect to the Debentures). Each Subsidiary
has been duly incorporated and is a validly existing corporation in good
standing under the laws of the jurisdiction set forth opposite its name on
Exhibit A, with full corporate power and authority to own or lease its
properties and assets and to conduct its business as described in the
Registration Statement and the Prospectus and is duly qualified to do business
in each jurisdiction in which it owns or leases real property or in which the
conduct of its business or the ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
Material Adverse Effect.
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(iii) The trust has been duly created and is a validly existing
business trust in good standing under the laws of Delaware, with full power and
authority to own or lease its properties and assets and to conduct its business
as described in the Registration Statement and the Prospectus, including,
without limitation, to enter into this Agreement and the other agreements or
instruments contemplated hereby, to issue and sell the Shares, to issue and sell
the Common Securities and to otherwise consummate the transactions contemplated
hereby, and is duly qualified to do business in each jurisdiction in which it
owns or leases real property or in which the conduct of its business or the
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect. The Trust
is a consolidated subsidiary of the Company pursuant to generally accepted
accounting principles, and has no subsidiaries of its own. The Trust is not a
party to or bound by any agreement or instrument other than the Trust Agreement,
this Agreement and the agreements and instruments contemplated by the Trust
Agreement and this Agreement and described in the Registration Statement and the
Prospectus. The Trust has no liabilities or obligations other than those arising
out of the transactions contemplated by the Trust Agreement and this Agreement
and described in the Registration Statement and the Prospectus. The Trust is, to
the knowledge of the Offerors, classified as a grantor trust and not as a
partnership or association taxable as a corporation for United States federal
income tax purposes.
(iv) The capitalization of the Company is, and upon consummation
of the transactions contemplated hereby and by the Prospectus will be, as set
forth in the Registration Statement and the Prospectus under the caption
"Capitalization." All of the outstanding shares of capital stock of the Company
have been duly authorized and are validly issued, are fully paid and
non-assessable and conform to the description thereof in the Company's Annual
Report on Form 10-K for its fiscal year ended June 30, 1998 (the "1998 Form
10-K") and were not issued in violation of any preemptive rights or other rights
to subscribe for or purchase securities. Except as set forth in the 1998 Form
10-K with respect to the Company's stock option plans and options, warrants or
other rights to acquire shares of Common Stock granted outside of the Company's
stock option plans, no options, warrants or other rights to purchase from the
Company, agreements or other obligations of the Company to issue or other rights
to convert any obligation into, or exchange any securities for, shares of
capital stock of or ownership interests in the Company are outstanding.
(v) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as described
therein, (A) neither the Trust, the Company nor any Subsidiary has incurred any
material liabilities or obligations, direct or contingent, or entered into any
material transactions, (B) neither the Trust, the Company nor any Subsidiary has
purchased any of its outstanding capital stock or declared, paid or otherwise
made any dividend or distribution of any kind on its capital stock or otherwise,
and (C) there has not been any material adverse change in the condition
(financial or otherwise), business, affairs, prospects or results of operations
of the Company and its Subsidiaries, taken as a whole, or of the Trust, or any
material change in the Trust's, the Company's or any Subsidiary's capital stock,
short-term debt or long-term debt.
(vi) The Shares to be sold by the Trust pursuant to this
Agreement have been duly and validly authorized and, when issued, delivered and
paid for
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pursuant to this Agreement, will be validly issued, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust and will be entitled
to the benefits of the Trust Agreement. The shares of --% Cumulative Trust
Common Securities having a Liquidation Amount of $10 per share (the "Common
Securities") will be sold by the Trust to the Company and, when so sold, will
have been duly and validly authorized and, when issued, delivered and paid for,
will be validly issued, fully paid and nonassessable undivided beneficial assets
of the Trust and will be entitled to the benefits of the Trust Agreement. The
Shares and the Common Securities conform to the descriptions thereof contained
in the Registration Statement and the Prospectus.
(vii) Subject to the terms of the Trust Agreement, holders of the
Shares will be entitled to the same limitation of personal liability under
Delaware law as extended to stockholders of private corporations for profit.
(viii) This Agreement has been duly authorized, executed and
delivered by the Trust and the Company and is a legal, valid and binding
agreement of the Trust and the Company enforceable in accordance with its terms,
except (i) as enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and by general equity principles, and (ii) as rights to indemnity or
contribution hereunder may be limited by Federal or state securities laws or the
public policy underlying such laws.
(ix) Each of the Administrative Trustees (as defined below) of
the Trust is an employee of the Company and has been authorized by the Company
to execute and deliver the Amended and Restated Trust Agreement (the "Trust
Agreement") by and among the Company, as Depositor, Wilmington Trust Company
("WTC") as Delaware Trustee (the "Delaware Trustee"), WTC as Property Trustee
(the "Property Trustee") and [Xxxxxxx X. Xxxxxxxx], [Xxxxxxx X. Xxxxx] and
[Xxxxx X. Xxxxxxx] as Administrative Trustees (the "Administrative Trustees").
The Trust Agreement has been duly authorized by the Company, will be duly
executed and delivered by the Company, as Depositor, and the Administrative
Trustees on the Closing Date, and will be legal, valid and binding agreements of
the Company and the Administrative Trustees enforceable in accordance with its
terms, except (i) as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general equity principles and (ii) as rights
to indemnity or contribution hereunder may be limited by Federal or state
securities laws or the public policy underlying such laws. The Trust Agreement
conforms in all material respects with the description thereof and all
statements relating thereto in the Registration Statement and the Prospectus and
has been qualified under the Trust Indenture Act.
(x) The Indenture ("Indenture") by and between the Company and
WTC, as Indenture Trustee (the "Indenture Trustee"), has been duly authorized by
the Company, will be duly executed and delivered by the Company on the Closing
Date, and will be a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except (i) as enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general equity
principles, and (ii) as rights to indemnity or contribution hereunder may be
limited by Federal or state securities laws or the public policy underlying such
laws. The
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Indenture conforms in all material respects with the description thereof and all
statements relating thereto in the Registration Statement and the Prospectus and
has been qualified under the Trust Indenture Act.
(xi) The Debentures have been duly authorized by the Company,
will be duly executed and delivered by the Company on the Closing Date and on
each Option Closing Date, and, when authenticated in the manner provided for in
the Indenture and delivered against payment therefor as described in the
Registration Statement and the Prospectus, will be legal, valid and binding
obligations of the Company enforceable in accordance with its terms, except
(i) as enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and by general equity principles, and (ii) as rights to indemnity or
contribution hereunder may be limited by Federal or state securities laws or the
public policy underlying such laws, and will be entitled to the benefits of the
Indenture. The Debentures conform in all material respects with the description
thereof and all statements relating thereto in the Registration Statement and
the Prospectus.
(xii) The Guarantee Agreement (the "Guarantee Agreement") by and
between the Company and WTC, as Guarantee Trustee (the "Guarantee Trustee"), has
been duly authorized by the Company, will be duly executed and delivered by the
Company on the Closing Date, and will be a legal, valid and binding agreement of
the Company enforceable in accordance with its terms, except (i) as
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and by
general equity principles, and (ii) as rights to indemnity or contribution
hereunder may be limited by Federal or state securities laws or the public
policy underlying such laws. The Guarantee pursuant to the Guarantee Agreement
and related documents conforms in all material respects with the description
thereof and all statements relating thereto in the Registration Statement and
the Prospectus and the Trust, pursuant to the Guarantee, has been qualified
under the Trust Indenture Act.
(xiii) The Expense Agreement (the "Expense Agreement") by and
between the Trust and the Company has been duly authorized by the Trust and the
Company, will be duly executed and delivered by the Trust and the Company on the
Closing Date, and will be a legal, valid and binding agreements of the Trust and
the Company enforceable in accordance with its terms, except (i) as
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and by
general equity principles, and (ii) as rights to indemnity or contribution
hereunder may be limited by Federal or state securities laws or the public
policy underlying such laws. The Expense Agreement conforms in all material
respects with the description thereof and all statements relating thereto in the
Registration Statement and the Prospectus.
(xiv) None of the Trust, the Company or any Subsidiary is in
violation of its Certificate of Trust and Trust Agreement, or its Certificate or
Articles of Incorporation or by-laws, as the case may be. None of the Trust, the
Company or any Subsidiary is in violation of or in breach of or in default in
(nor has any event occurred that with notice or lapse of time, or both, would be
a breach of or a default in) the performance of any obligation, agreement or
condition contained in any agreement, lease, contract,
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permit, license, franchise agreement, mortgage, loan agreement, debenture, note,
deed of trust, bond, indenture or other evidence of indebtedness or any other
instrument or obligation (collectively, "Obligations and Instruments") to which
it is a party or by which it or any of its properties or assets are bound or
affected, except for such violation, breach, default as, either individually or
in the aggregate, would not have a Material Adverse Effect. Without limiting the
generality of the foregoing sentence, there is no default or event of default
(nor has any event occurred that with notice or lapse of time, or both, would
result in a default or event of default) under or in connection with any of the
Key Agreement, the Xxxxxx Agreements, the Finova Agreement or any other Senior
and/or Subordinated Debt (all as defined in the Prospectus). None of the Trust,
the Company or any Subsidiary is in violation of any statute, judgment, decree,
order, Rule or regulation (collectively, "Laws") applicable to it or any of its
properties or assets that, alone or together with other violations of Laws,
would result in a Material Adverse Effect.
(xv) The execution, delivery and performance of this Agreement
and delivery of the Shares by the Trust and compliance by the Trust and the
Company with all the provisions hereof and the consummation of the transactions
contemplated hereby and as described in the Registration Statement and the
Prospectus will not, alone or upon notice or the passage of time or both
(A) require any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body or third party
(except such as may be required under the Act and the securities or Blue Sky
laws of the various states or by the NASD), (B) result in the creation or
imposition of any material lien, charge or encumbrance upon any of the
properties or assets of the Trust, the Company or any Subsidiary pursuant to the
terms and provisions of any Obligation or Instrument, (C) conflict with or
constitute a breach or default under any Obligation or Instrument to which the
Trust, the Company or any Subsidiary is a party or by which it or any of its
properties or assets are bound (including without imitation the Key Agreement,
the Finova Agreement, the Xxxxxx Agreements or any other Senior and/or
Subordinated Debt Obligations and Instruments), or (D) assuming compliance with
the Act and all applicable state securities or Blue Sky laws violate or conflict
with any Laws applicable to the Trust, the Company or any Subsidiary or any of
its properties or assets, except, with respect to clauses (B), (C) and (D)
hereof, for such liens, charges, encumbrances, conflicts, breaches, defaults or
violations as would not, either individually or in the aggregate, have a
Material Adverse Effect.
(xvi) Except as set forth in the Registration Statement and the
Prospectus, there is no action, suit, proceeding, inquiry or investigation,
governmental or otherwise before any court, arbitrator or governmental agency or
body (collectively, "Proceedings") pending to which the Trust, the Company or
any Subsidiary is a party or to which any of their properties or assets are
subject, that, individually or in the aggregate, if determined adversely to the
Trust, the Company or such Subsidiary, could reasonably be expected to result in
a Material Adverse Effect, or that seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of any of the Shares
to be sold hereunder or the consummation of the transactions described in the
Registration Statement and the Prospectus and, to the best knowledge of the
Offerors, no such Proceedings are threatened or contemplated. There is no
contract, document, agreement or transaction to which the Trust, the Company or
any Subsidiary is a party, or that involved or involves the Trust, the Company
or any Subsidiary or any of its properties or assets that is required to be
-13-
described in or filed as an exhibit to the Registration Statement by the Act or
the Rules and Regulations that has not been so described or filed. To the best
knowledge of the Offerors, no action has been taken by any governmental agency
that suspends the effectiveness of the Registration Statement, prevents or
suspends the use of any Preliminary Prospectus or the Prospectus or suspends the
sale of the Shares in any jurisdiction referred to in Section 5(h) hereof. No
injunction, restraining order or order of any nature by a federal or state court
of competent jurisdiction has been issued with respect to the Trust, the Company
or any Subsidiary that might prevent the issuance of the Shares, suspend the
effectiveness of the Registration Statement, prevent or suspend the use of any
Preliminary Prospectus or the Prospectus or suspend the sale of the Shares in
any jurisdiction referred to in Section 5(h) hereof. Every request of the
Commission, or any securities authority or agency of any jurisdiction, for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) has been complied with in all material respects.
(xvii) Neither the Company nor any Subsidiary has violated any
Federal or state law, statute, ordinance, rule, regulation or common law, as the
same may be interpreted or administered by any Federal, state, regional, county
or local agencies, relating to (A) the protection, investigation, remediation,
or restoration of the environment or natural resources, (B) the handling, use,
storage, treatment, disposal, release or threatened release of any Hazardous
Material (as defined below), or (C) pollution or contamination ("Environmental
Laws"), except for such violations as would not, either individually or in the
aggregate, have a Material Adverse Effect, nor, to the knowledge of the
Offerors, are there any circumstances, either past, present or that are
reasonably foreseeable, that may lead to such violation in the future that, in
each case or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. No property owned or leased by the Company or any
Subsidiary is included or, to the best of the knowledge of the Company, proposed
for inclusion on the National Priorities List promulgated under the
Comprehensive Environmental Response Compensation and Liability Act of 1980,
U.S.C. section 9601 et seq. Except for any asbestos containing materials or
lead-based paint that may be, or may have been contained, on property, to the
knowledge of the Offerors no property currently, or in the past, owned or leased
by the Company or any Subsidiary contains, or contained, as the case may by, any
Hazardous Material that requires or required, as the case may be, investigation
or remediation under any Environmental Law, except for such investigation or
remediation as would not, either individually or in the aggregate, have a
Material Adverse Effect. Neither the Company nor any Subsidiary has caused or
allowed the release of any Hazardous Material on, in, under or from any property
currently or in the past owned or leased by the Company or any Subsidiary,
except for such releases as would not, either individually or in the aggregate,
have a Material Adverse Effect, nor may the Company or any Subsidiary be deemed
an "owner or operator" of a "facility" or "vessel" that owns, possesses,
transports, generates, discharges or disposes of a "hazardous substance" as
those terms are defined in Section 9601 of the Comprehensive Response
Compensation and Liability Act of 1980, U.S.C. Section 9601 et seq. Neither the
Company nor any Subsidiary has received any notice of a claim under or pursuant
to any Environmental Law relating to any Hazardous Material on or originating
from any property currently or in the past owned or leased by the Company or any
Subsidiary, except for such claims as would not, either individually or in the
aggregate, have a Material Adverse Effect. "Hazardous Material" means any
substance, material, or waste that is (A) listed, classified or regulated as a
hazardous substance or waste in any concentration pursuant to any Environmental
Law, or
-14-
(B) any other substance, material, or waste which may be the subject of
regulatory action by any governmental entity pursuant to any Environmental Law.
(xviii) The Trust, the Company and each Subsidiary has such
permits, licenses, registrations, franchises and authorizations of governmental
or regulatory authorities or third parties ("Permits"), including, without
limitation, under any applicable Environmental Laws, as are necessary to own,
lease and operate its properties and assets and to conduct its businesses or
operations, except where the failure to have any such Permit would not have a
Material Adverse Effect. The Trust, the Company and each Subsidiary are in
compliance with such Permits, except where such failure to comply with such
Permits would not, either individually or in the aggregate, have a Material
Adverse Effect. No event has occurred that allows, or after notice or lapse of
time, or both would allow, revocation or termination thereof or result in any
other material impairment of the rights of the holder of any such Permits.
(xix) Neither the Company nor any Subsidiary is in violation of
any foreign, Federal, state or local law relating to discrimination in the
hiring, promotion or pay of employees for any applicable foreign, Federal or
state wages and hours laws, nor any provisions of the Employee Retirement Income
Security Act of 1974, as amended, or the rules and regulations promulgated
thereunder ("ERISA") or similar foreign laws, the violation of which in each
case or in the aggregate would result in a Material Adverse Effect. No
"reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) which in each case or in the aggregate
would result in a Material Adverse Effect. The Company has not incurred any
material liability under (i) Title IV of ERISA with respect to the termination
of, or withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended.
(xx) None of the Trust, the Company or any Subsidiary is, or
intends to conduct its business in a manner in which it would become, an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(xxi) Except as otherwise set forth in the Registration Statement
and the Prospectus, the Company and each Subsidiary has good and marketable
title, free and clear of all liens, claims, encumbrances and restrictions
(except liens for taxes not yet due and payable) to all property and assets
described in the Registration Statement as being owned by it, except for such
liens, claims, encumbrances and restrictions as would not have a Material
Adverse Effect. All leases to which the Company or any Subsidiary is a party are
subsisting, valid and binding obligation of the Company or such Subsidiary and
no default of the Company or the Subsidiary or, to the best knowledge of the
Offerors, any other person has occurred or is continuing thereunder that might
result in a Material Adverse Effect. The Company and each Subsidiary enjoys
peaceful and undisturbed possession under all such leases to which the Company
or the Subsidiary is a party as lessee with such exceptions as do not materially
interfere with the use made thereof by the Company or the Subsidiary.
-15-
(xxii) The Company and each Subsidiary is insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as is reasonable and prudent for the business in which it is engaged.
(xxiii) No labor dispute with the employees of the Company or any
Subsidiary exists, or to the best knowledge of the Offerors, is imminent, that
could result in a Material Adverse Effect. The Company does not know of any
existing or imminent labor disturbance by the employees of any of its or its
Subsidiaries' principle suppliers, customers, manufacturers or contractors that
could reasonably be expected to result in a Material Adverse Effect.
(xxiv) Deloitte & Touche, LLP, the accounting firm that has
audited the required annual financial statements and supporting schedules filed
or to be filed with the Commission as part of the Registration Statement and the
Prospectus, is an independent public accounting firm with respect to the Trust
and the Company as required by the Act.
(xxv) The consolidated financial statements of the Company,
together with related notes and schedules of the Company included in the
Registration Statement and the Prospectus, are accurate and present fairly the
financial position, results of operations and cash flows of the Company as
consolidated with its Subsidiaries at the indicated dates and for the indicated
periods. Such financial statements have been prepared in accordance with
generally accepted accounting principles ("GAAP") consistently applied
throughout the periods involved, and all adjustments necessary for a fair
presentation of results for such periods have been made; any unaudited financial
statements have been prepared on a basis substantially consistent with that of
the audited operating financial statements included in the Registration
Statement and the Prospectus. The summary and selected financial and operating
data included in the Registration Statement and the Prospectus presents fairly
the information shown therein and have been prepared on a basis consistent with
the audited and any unaudited financial statements, as the case may be, included
therein. The pro forma information included in the Registration Statement and
the Prospectus present fairly the information shown therein, has been prepared
in accordance with GAAP and the Commission's rules and guidelines with respect
to pro forma financial statements and other pro forma information, has been
properly prepared on the pro forma basis described therein and the assumptions
used in the preparation thereof are reasonable and the adjustments used therein
are appropriate under the circumstances.
(xxvi) No holder of any security of the Company has any right to
require inclusion of any such security in the Registration Statement or, to the
extent such rights exist, (a) such rights have been waived or (b) the securities
as to which such rights exist are currently subject to an effective registration
statement under the Act. There are no preemptive rights with respect to the
offering being made by the Prospectus or the offer or sale of the Common
Securities to the Company.
(xxvii) The Trust, the Company and each Subsidiary has filed or
caused to be filed, or has properly filed extensions for, all foreign, federal,
state and local income, value added and franchise tax returns and has paid all
taxes and assessments shown thereon as due, except for such taxes and
assessments as are disclosed or adequately
-16-
reserved against and that are being contested in good faith by appropriate
proceedings, promptly instituted and diligently conducted. All material tax
liabilities are adequately provided for on the books of the Company and each
Subsidiary, and there is no material tax deficiency that has been or might be
asserted against the Trust, the Company or any Subsidiary that is not so
provided for. During the time the Company had elected to be treated as an "S"
Corporation under the Internal Revenue Code of 1986, as amended (the "Code"),
and any applicable state law, the Company's election of such status was validly
made, and at all times until April --, 1996 the Company qualified continuously
for treatment as an "S" Corporation under the Code.
(xxviii) The Company and each Subsidiary owns or possesses, or
can acquire on reasonable terms, 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, "Patents
and Proprietary Rights") currently employed by it in connection with the
business it now operates except where the failure to so own, possess or acquire
such Patents and Proprietary Rights would not have a Material Adverse Effect.
Neither the Company nor any Subsidiary has received any notice and the Offerors
are not otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Patent or Proprietary Rights that, if the subject
of any unfavorable decision, ruling or finding, singly or in the aggregate,
could result in a Material Adverse Effect.
(xxix) Each of the Trust, the Company and each Subsidiary has
conducted, is conducting and intends to conduct its business so as to comply in
all material respects with applicable federal, state, local and foreign
government Laws, except where the failure to comply would not have a Material
Adverse Effect. Neither the Trust, the Company nor any Subsidiary is charged
with or, to the Offerors' knowledge, under investigation with respect to, any
material violation of any such Laws.
(xxx) None of the Trust, the Company or any Subsidiary has taken
or will take, directly or indirectly, any action designed to or which has
constituted or that might reasonably be expected to cause or result, under the
Exchange Act or otherwise, in stabilization or manipulation of the price of any
security of the Trust or the Company to facilitate the sale or resale of the
Shares.
(xxxi) None of the Trust, the Company, any Subsidiary or, to the
best knowledge of the Offerors, any employee or agent of the Trust, the Company
or any Subsidiary has made any payment of funds of the Trust, the Company or the
Subsidiary or received or retained any funds in violation of any law, Rule or
regulation (including, without limitation, the Foreign Corrupt Practices Act) or
of a character required to be disclosed in the Prospectus. Neither the Trust,
the Company nor any Subsidiary has, at any time during the past five years,
(1) made any unlawful contributions to any candidate for any political office,
or failed fully to disclose any contribution in violation of law, or (2) made
any unlawful payment to state, federal or foreign government officer or
officers, or other person charged with similar public or quasi-public duty.
(xxxii) No transaction has occurred between or among the Trust,
the Company or any Subsidiary and any of the Trust's, the Company's or such
Subsidiary's
-17-
officers, directors or trustees or any affiliate or affiliates of any such
officer, director or trustee that is required to be described in and is not
described in the Registration Statement and the Prospectus. There is no material
contract, document, agreement, transaction or relationship of a character
required by the Act to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that is
not described or filed as required.
(xxxiii) Other than as provided to the Underwriters under this
Agreement, none of the Trust, the Company or any Subsidiary has incurred any
liability for finder's or broker's fees or agent's commissions in connection
with the execution and delivery of this Agreement, the offer and sale of the
Shares or the transactions hereby contemplated.
(xxxiv) The Trust, the Company and each Subsidiary maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and (iv) the
recorded accountability for inventory is compared with the existing inventory at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxxv) The Company has been subject to the requirements of
Section 12 or 15(d) of the Exchange Act and has filed in a timely manner all
reports and other material required to be filed pursuant to Sections 13, 14 or
15(d) of the Exchange Act since April --, 1996 and, if the Company has used Rule
12b-25(b) under the Exchange Act with respect to a report or a portion of any
such report, that report or portion thereof has actually been filed within the
time period prescribed by that rule. All such reports and other materials filed
pursuant to the Exchange Act were, at the time of their filing, complete and
accurate in all material respects.
(xxxvi) The Company has not, since the end of its fiscal year
ended June 30, 1998 (for which audited financial statements of the Company were
included in the 1998 Form 10-K, a report filed pursuant to Section 13(a) or
15(d) of the Exchange Act) defaulted on any (a) installment or installments of
indebtedness for borrowed money or (b) rental on one or more long term leases,
which defaults in the aggregate are material to the financial position of the
Company.
(xxxvii) The Offerors confirm as of the date hereof that the
Trust, the Company and each Subsidiary is in compliance with all provisions of
Section 1 of Florida Statutes, Section 517.075, An Act Relating to Disclosure of
Doing Business with Cuba. The Offerors further agree that if they or any
Subsidiary commences engaging in business with the government of Cuba or with
any person or affiliate located in Cuba after the date the Registration
Statement becomes or has become effective with the Commission or with the
Florida Department of Banking and Finance (the "Department"), whichever date is
later, the Trust and the Company will provide the Department notice of such
business or change, as appropriate, in a form acceptable to the Department.
-18-
(xxxviii) No Subsidiary is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on any such Subsidiary's capital stock, from repaying to the
Company any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary's property or assets to the Company or any
other Subsidiary.
(b) Any certificate signed by any trustee of the Trust or officer of
the Company and delivered to the Underwriters or to counsel for the Underwriters
shall be deemed a representation and warranty made by the Trust or Company, as
the case may be, to each Underwriter as to the matters covered thereby and shall
be deemed incorporated herein in its entirety and shall be effective as if such
representation and warranty were made herein.
7. Indemnification.
(a) The Offerors agree, jointly and severally, to indemnify and hold
harmless each of the Underwriters and each person, if any, who controls each of
the Underwriters within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act (collectively the Underwriters and each such person are
sometimes referred to in this Section 7 as the "indemnified parties") from and
against any and all losses, claims, damages, liabilities and judgments caused
by, arising out of, related to or based upon: (i) any inaccuracy of any
representation or warranty by the Offerors contained in Section 6 hereof;
(ii) any failure of the Offerors to perform their respective obligations
hereunder or under law; or (iii) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (as amended
or supplemented if the Offerors shall have furnished any amendments or
supplements thereto), including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A, if
applicable, or 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 statements therein not misleading;
provided, however, that the indemnification contained in this paragraph with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter or any
employee of such Underwriter) on account of any such loss, liability, claim,
damage or expense arising from the sale of the Shares by such Underwriter to any
person if a copy of the Prospectus shall not have been sent to such person
within the time required by the Act and the Regulations, and the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such Preliminary Prospectus was corrected in the
Prospectus, as amended or supplemented, provided that the Offerors had delivered
the Prospectus, as amended or supplemented, to the several Underwriters on a
timely basis to permit such delivery or sending; and provided further, that the
Offerors shall not be liable in any such case to the extent that such losses,
claims, damages, liabilities or judgments are caused by an untrue statement or
omission made or omitted in reliance upon, and in conformity with, Underwriters'
Information.
(b) In case any action shall be brought against any of the indemnified
parties, based upon any Preliminary Prospectus, the Registration Statement or
the Prospectus or any amendment or supplement thereto, or otherwise, and with
respect to which indemnity may be sought against the Offerors, such indemnified
parties shall promptly notify the Offerors in writing (but the failure so to
notify shall not relieve the Offerors of any liability
-19-
that it may otherwise have to such indemnified parties under this Section 7,
although the Offerors' liability to an indemnified party may be reduced on a
monetary basis to the extent, but only to the extent, it has been prejudiced by
such failure on the part of such indemnified party), and the Offerors shall
promptly assume the defense thereof, including the employment of counsel
satisfactory to such indemnified party and payment of all fees and expenses. The
indemnified parties shall each have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such indemnified parties unless (i) the
employment of such counsel shall have been specifically authorized by the
Offerors, (ii) the Offerors shall have failed to assume promptly the defense, or
(iii) the named parties to any such action (including any impleaded parties)
include both the indemnified parties and the Offerors, and an indemnified party
shall have been advised by counsel that there may be a conflict of interest
between the indemnified parties, on the one hand, and the Offerors, on the other
hand, (in which case the Offerors shall not have the right to assume the defense
of such action on behalf of such indemnified party, it being understood,
however, that the Offerors shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) for the indemnified parties, which firm shall be designated
in writing by EVEREN Securities, Inc., and that all such fees and expenses shall
be reimbursed promptly as they are incurred). The Offerors shall not be liable
for any settlement of any such action effected without their written consent,
which consent shall not be unreasonably withheld, but if settled with the
written consent of the Offerors, the Offerors agree to indemnify and hold
harmless the indemnified parties from and against any and all loss or liability
by reason of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested the Offerors to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, the Offerors agree that they shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 10 business days after delivery by
registered or certified mail to the proper address for notice to the Offerors of
the aforesaid request (whether or not such delivery is accepted) and (ii) the
Offerors shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. The Offerors shall not, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional and complete
release in writing of such indemnified party from any and all liability on
claims that are the subject matter of such proceeding, which settlement shall be
in form and substance reasonably satisfactory to the indemnified party. The
indemnification provided in this Section 7 will be in addition to any liability
which the Offerors may otherwise have.
(c) The Underwriters agree, severally and not jointly, to indemnify
and hold harmless each of the Offerors, its directors, officers or trustees who
sign the Registration Statement and any person controlling the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the indemnity provided in Section 7(a)(iii) above from the
Offerors to the Underwriters, but only with reference to information stated in
or omitted from the Registration Statement, the Prospectus
-20-
or any Preliminary Prospectus in reliance upon, and in conformity with, the
Underwriters' Information. In case any action shall be brought against the
Offerors, any of the Offerors' directors, any such officers or any person
controlling the Offerors based on the Registration Statement, the Prospectus or
any Preliminary Prospectus and in respect of which indemnity may be sought
against the Underwriters, the Underwriters shall have the rights and duties
given to the Offerors by Section 7(b) hereof (except that if the Offerors shall
have assumed the defense thereof, such Underwriter shall not be required to do
so, but may employ separate counsel therein and participate in the defense
thereof but the fees and expenses of such counsel shall be at the expense of
such Underwriter), and the Offerors, their directors, any such officers and any
person controlling the Officers shall have the rights and duties given to the
"indemnified parties" by Section 7(b) hereof.
(d) The Company agrees to indemnify and hold harmless the Trust, its
directors, officers or trustees who sign the Registration Statement and any
person controlling the Trust within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the indemnity provided in
Section 7(a) above from the Offerors to the Underwriters.
(e) If the indemnification provided for in this Section 7 is for any
reason unavailable to an indemnified party or insufficient to hold such
indemnified party harmless in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriters on the other from the offering of the Shares or (ii) if the
allocation provided in clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Offerors on
the one hand and the Underwriters on the other in connection with the statements
or omissions or alleged statements or omissions that resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering and sale of the Shares
(before deducting expenses) received by the Offerors on the one hand, and the
total underwriting discounts and commissions received by the Underwriters on the
other, bears to the total price to the public of the Shares, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault of
the Offerors and the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or the alleged omission to state a material fact relates to
information supplied by the Offerors or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a
-21-
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
of Underwriting Commission received by such Underwriter in connection with the
Shares underwritten by it and distributed to the public. 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' obligation in this
Section 7(e) to contribute are several in proportion to the respective amount of
Shares purchased hereunder by each Underwriter and not joint.
8. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Shares on the Closing
Date and the Additional Shares on any Option Closing Date are subject to the
fulfillment of each of the following conditions on or prior to the Closing Date
and each Option Closing Date:
(a) All the representations and warranties of the Offerors contained
in this Agreement and in any certificate delivered hereunder shall be true and
correct on the Closing Date and each Option Closing Date with the same force and
effect as if made on and as of the Closing Date or Option Closing Date, as
applicable. The Offerors shall not have failed at or prior to the Closing Date
or Option Closing Date, as applicable, to perform or comply in all material
respects with any of the agreements herein contained and required to be
performed or complied with by the Offerors at or prior to the Closing Date or
the Option Closing Date, as applicable.
(b) If the Registration Statement is not effective at the time of the
execution and delivery of this Agreement, the Registration Statement shall have
become effective (or, if a post-effective amendment is required to be filed
pursuant to Rule 430A under the Act, such post-effective amendment shall have
become effective) not later than 9:30 A.M., New York City time, on the date of
this Agreement or such later time as the Representatives may approve in writing
or, if the Registration Statement has been declared effective prior to the
execution and delivery hereof in reliance on Rule 430A, the Prospectus shall
have been filed as required by the Act, if necessary; and at the Closing Date
and each applicable Option Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or, to the best knowledge of the Underwriters or the Offerors, threatened
by the Commission; every request for additional information on the part of the
Commission shall have been complied with to the Underwriters' satisfaction; no
stop order suspending the sale of the Shares in any jurisdiction referred to in
Section 5(h) shall have been issued and no proceeding for that purpose shall
have been commenced or shall be pending or, to the best knowledge of the
Underwriters or the Offerors, threatened.
(c) The Shares shall have been qualified for sale (or an exemption
from such qualification shall have been secured) under the Blue Sky laws of such
states as shall have been specified by the Representatives.
-22-
(d) The legality and sufficiency of the authorization, issuance and
sale or transfer and sale of the Shares hereunder, the validity and form of the
certificates representing the Shares, the execution and delivery of this
Agreement and all corporate proceedings and other legal matters incident
thereto, and the form of the Registration Statement and the Prospectus (except
financial statements) shall have been approved by counsel for the Underwriters
exercising reasonable judgment, and no Underwriter shall have advised the
Offerors that the Registration Statement or the Prospectus, or any amendment or
supplement thereto, contains an untrue statement of material fact, or omits to
state a fact that in the Representatives' opinion is material and is required to
be stated therein or is necessary to make the statements therein not misleading.
(e) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any material change, or any development involving a
prospective material change, in or affecting particularly the business or
properties of the Trust, the Company or any Subsidiary, whether or not arising
in the ordinary course of business, that, in the reasonable judgment of the
Representatives, makes it impractical or inadvisable to proceed with the public
offering or purchase of the Shares as contemplated hereby, or (ii) any event
described in clauses (ii)-(vii) of the second paragraph of Section 9 hereof.
(f) The Underwriters shall have received an opinion (satisfactory to
them and their counsel) dated the Closing Date or the Option Closing Date, as
the case may be, of Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel for the
Offerers, in form and substance satisfactory to the Representatives and attached
hereto as Exhibit B-1; the Underwriters shall have received an opinion
(satisfactory to them and their counsel) dated the Closing Date or the Option
Closing Date, as the case may be, of Xxxxxxxx, Xxxxxx & Finger, P.A., special
counsel for the Property Trustee, the Indenture Trustee and the Guarantee
Trustee, in form and substance satisfactory to the Representatives and attached
hereto as Exhibit B-2.
(g) The Underwriters shall have received an opinion (satisfactory to
them and their counsel) dated the Closing Date or the Option Closing Date, as
the case may be, of Stoel Rives LLP, counsel for the Company, in form and
substance satisfactory to the Representatives and attached hereto as Exhibit
B-3.
(h) The Underwriters shall have received an opinion (satisfactory to
the Underwriters and their counsel) dated the Closing Date or the Option Closing
Date, as the case may be, of Xxxxxx & Xxxxxxx, counsel for the Company, in form
and substance satisfactory to the Representatives and attached hereto as Exhibit
B-4.
(i) The Underwriters shall have received an opinion of Irell & Xxxxxxx
LLP, counsel for the Underwriters, dated the Closing Date or the Option Closing
Date, as the case may be, in form and substance satisfactory to the
Representatives and attached hereto as Exhibit B-5.
(j) The Underwriters shall have received, in connection with the
execution of this Agreement and on the Closing Date and each Option Closing
Date, a "cold comfort" letter from Deloitte & Touche, LLP, dated as of each such
date in form and substance satisfactory to the Representatives with respect to
the financial statements and
-23-
certain financial information and data contained in the Registration Statement
and the Prospectus [SEPARATE COMFORT FROM MALAYSIAN ACCOUNTANTS].
(k) The Underwriters shall have received from the Company a certificate, signed
by Xxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxx in their capacities as the President
and Chief Operating Officer of the Company and Vice President and CFO of the
Company, respectively, addressed to the Underwriters and dated the Closing Date
or Option Closing Date, as applicable, to the effect that:
(i) such officer does not know of any Proceedings instituted,
threatened or contemplated against the Company or any Subsidiary of a
character required to be disclosed in the Prospectus that are not so
disclosed; such officer does not know of any material contract
required to be filed as an exhibit to the Registration Statement which
is not so filed;
(ii) such officer has carefully examined the Registration
Statement and the Prospectus and all amendments or supplements thereto
and, in such officer's opinion, such Registration Statement or such
amendment as of its effective date and as of the Closing Date, and the
Prospectus or such supplement as of its date and as of the Closing
Date, did not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading and, in such
officer's opinion, since the effective date of the Registration
Statement, no event has occurred or information become known that
should have been set forth in an amendment to the Registration
Statement or a supplement to the Prospectus which has not been so set
forth in such amendment or supplement;
(iii) the representations and warranties of the Company set forth
in Section 6 of this Agreement are true and correct as of the date of
this Agreement and as of the Closing Date or the Option Closing Date,
as the case may be, and the Company has complied in all material
respects with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to such Closing Date
or the Option Closing Date, as the case may be; and
(iv) the Commission has not issued an order preventing or
suspending the use of the Prospectus or any preliminary prospectus
filed as a part of the Registration Statement or any amendment
thereto; no stop order suspending the effectiveness of the
Registration Statement has been issued; and, to the best knowledge of
the respective officers, no proceedings for that purpose have been
instituted or are pending or contemplated under the Act.
The delivery of the certificate provided for in this subparagraph shall be and
constitute a representation and warranty of the Company as to the facts set
forth in said certificate.
-24-
(l) The Underwriters shall have received from the Trust a certificate,
signed by each of the Administrative Trustees, addressed to the Underwriters and
dated the Closing Date or Option Closing Date, as applicable, to the effect
that:
(i) such trustee does not know of any Proceedings instituted,
threatened or contemplated against the Trust of a character required
to be disclosed in the Prospectus that are not so disclosed; such
trustee does not know of any material contract required to be filed as
an exhibit to the Registration Statement which is not so filed;
(ii) such trustee has carefully examined the Registration
Statement and the Prospectus and all amendments or supplements thereto
and, in such trustee's opinion, such Registration Statement or such
amendment as of its effective date and as of the Closing Date, and the
Prospectus or such supplement as of its date and as of the Closing
Date, did not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading and, in such
trustee's opinion, since the effective date of the Registration
Statement, no event has occurred or information become known that
should have been set forth in an amendment to the Registration
Statement or a supplement to the Prospectus which has not been so set
forth in such amendment or supplement;
(iii) the representations and warranties of the Trust set forth
in Section 6 of this Agreement are true and correct as of the date of
this Agreement and as of the Closing Date or the Option Closing Date,
as the case may be, and the Trust has complied in all material
respects with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to such Closing Date
or the Option Closing Date, as the case may be; and
(iv) the Commission has not issued an order preventing or
suspending the use of the Prospectus or any preliminary prospectus
filed as a part of the Registration Statement or any amendment
thereto; no stop order suspending the effectiveness of the
Registration Statement has been issued; and, to the best knowledge of
the respective trustees, no proceedings for that purpose have been
instituted or are pending or contemplated under the Act.
The delivery of the certificate provided for in this subparagraph shall be and
constitute a representation and warranty of the Offerors as to the facts set
forth in said certificate.
(l) The Underwriters and Irell & Xxxxxxx LLP, counsel for the
Underwriters, shall have received on or before the Closing Date or the Option
Closing Date, as the case may be, such further documents, opinions, certificates
and schedules or instruments relating to the business, corporate, legal and
financial affairs of the Offerors as the Underwriters and they shall have
reasonably requested from the Offerors.
-25-
9. Effective Date of Agreement, Termination and Defaults. This Agreement
shall become effective upon, and shall not be deemed delivered until, the later
of (i) execution of this Agreement by or on behalf of all parties hereto, and
(ii) when notification of the effectiveness of the Registration Statement has
been released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date and
any exercise of the option to purchase Additional Shares may be canceled at any
time prior to any Option Closing Date by the Underwriters by written notice to
the Offerors if any of the following has occurred: (i) since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change or development involving a prospective
material adverse change in the condition, financial or otherwise, of the Trust
or the Company or the earnings, assets, liabilities, affairs, prospects,
management or business of the Trust or the Company, whether or not arising in
the ordinary course of business, that would, in the Representatives' sole
judgment, make it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus, (ii) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United States that, in
the Representatives' judgment, is material and adverse and would, in the
Representatives' judgment, make it impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus, (iii) the suspension or
material limitation of trading in securities on the New York Stock Exchange,
Inc., the American Stock Exchange, Inc., the Nasdaq SmallCap Market or the
Nasdaq Stock Market or limitation on prices for securities on either such
exchange, the Nasdaq SmallCap Market or the Nasdaq Stock Market, (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, Rule or order of any court or other governmental authority
that in the Representatives' opinion materially and adversely affects, or will
materially and adversely affect, the business or operations of the Trust or the
Company, (v) the declaration of a banking moratorium by either federal or
Oregon, California, Illinois or New York state authorities, (vi) the taking of
any action by any Federal, state or local government or agency in respect of its
monetary or fiscal affairs that in the Representatives' opinion has a material
adverse effect on the financial markets in the United States, (vii) there shall
be any change in financial markets or in political, economic or financial
conditions which, in the opinion of the Representatives, either renders it
impracticable or inadvisable to proceed with the offering and sale of the Shares
on the terms set forth in the Prospectus or materially adversely affects the
market for the Shares, (viii) a "Tax Event" or "Investment Company Event" (as
defined in the Prospectus), or (ix) any conditions to the Underwriters'
obligations under this Agreement shall not have been fulfilled when and as
required by this Agreement.
If on the Closing Date or on any Option Closing Date, as the case may be,
any of the Underwriters shall fail or refuse to purchase the Firm Shares or
Additional Shares, as the case may be, which it has agreed to purchase hereunder
on such date, and the aggregate number of Firm Shares or Additional Shares, as
the case may be, that such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase does not exceed, in the aggregate, 10% of the
total number of Shares that all Underwriters are obligated to purchase on such
date, each non-defaulting Underwriter shall be obligated, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule I hereto
bears to the total number of Firm Shares or Additional Shares, as the case may
be, that all the non-defaulting
-26-
Underwriters have agreed to purchase, or in such other proportion as the
non-defaulting Underwriters may specify, to purchase the Firm Shares or
Additional Shares, as the case may be, that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the
Closing Date or on the Option Closing Date, as the case may be, any of the
Underwriters shall fail or refuse to purchase the Firm Shares or Additional
Shares, as the case may be, in an amount that exceeds, in the aggregate, 10% of
the total number of the Shares, and arrangements satisfactory to the
non-defaulting Underwriters and the Offerors for the purchase of such Shares are
not made within 48 hours after such default, this Agreement shall terminate
without liability on the part of the non-defaulting Underwriters and the
Offerors, except as otherwise provided in this Section 9. In any such case that
does not result in termination of this Agreement, either the Representatives or
the Company may postpone the Closing Date or the Option Closing Date, as the
case may be, for not longer than seven (7) days, in order that the required
changes, if any, in the Registration Statement and the Prospectus or any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve a defaulting Underwriter from liability in respect of any
default of any such Underwriter under this Agreement.
The indemnity and contribution provisions and other agreements,
representations and warranties of the Offerors and the Offerors' officers,
directors and trustees set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Shares, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of any of the Underwriters or by or on
behalf of the Offerors or the officers or directors of the Offerors or any
controlling person of the Offerors, (ii) acceptance of the Shares and payment
therefor hereunder or (iii) termination of this Agreement. Notwithstanding any
termination of this Agreement, the Offerors shall be liable for and shall pay
all expenses they have agreed to pay pursuant to Section 5(l).
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of, and shall be binding upon, the Offerors, the Underwriters,
any indemnified person referred to herein and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
terms "successors and assigns" shall not include a purchaser of any of the
Shares from any of the several Underwriters merely because of such purchase.
10. Effectiveness of Registration Statement. The Underwriters and the
Offerors will use their best efforts to cause the Registration Statement to
become effective, if it has not yet become effective, and to prevent the
issuance of any stop order suspending the effectiveness of the Registration
Statement and, if such stop order be issued, to obtain as soon as possible the
lifting thereof.
11. Miscellaneous. All communications hereunder will be in writing and, if
sent to the Underwriters will be mailed, delivered or telegraphed and confirmed
to the Representatives c/o EVEREN Securities, Inc., 00 Xxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Syndicate Department, with a copy to
Irell & Xxxxxxx LLP, 000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx
00000-0000, Attention: Xxxx X. Xxxxxx, Esq.; and if sent to the Offerors will be
mailed, delivered or telegraphed and
-27-
confirmed to the Offerors at the Company's corporate headquarters with a copy to
Stoel Rives LLP, 000 XX Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx 00000-0000,
Attention: Xxxxxx X. Xxxxxxx, Esq. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement among
the Offerors and the several Underwriters, including the Representatives.
Very truly yours,
XXXXXXXXXX INDUSTRIES, INC.
By: XXXXXXX X. XXXXXXXX
------------------------------------
Xxxxxxx X. Xxxxxxxx
President and Chief Operating Officer
And
XXXXXXXXXX INDUSTRIES TRUST I
By: XXXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxxxx
Administrative Trustee
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The foregoing Underwriting Agreement is hereby confirmed and accepted as of
the date first above written.
EVEREN SECURITIES, INC.
ADVEST, INC.
BLACK & COMPANY
Acting as Representatives of the several Underwriters named in Schedule I.
By: EVEREN Securities, Inc.
By:------------------------------
Xxxxx Xxxxx
Senior Managing Director
-29-
Exhibit A
---------
Subsidiaries
Name of Subsidiary Jurisdiction of Incorporation
------------------ -----------------------------
Exhibit B-1
-----------
Opinion of Xxxxxxxx, Xxxxxx & Finger, P.A.,
as counsel to the Company and the Trust
Exhibit B-2
-----------
Opinion of Xxxxxxxx, Xxxxxx & Finger, P.A.,
as counsel to the Property Trustee, the Indenture Trustee
and the Guarantee Trustee
Exhibit B-3
-----------
Opinion of Stoel Rives LLP,
as counsel to the Company
Exhibit B-4
-----------
Opinion of Xxxxxx & Xxxxxxx,
as counsel to the Company
Exhibit B-5
-----------
Opinion of Irell & Xxxxxxx LLP,
as Underwriters' Counsel
Schedule I
----------
Number of Firm
Underwriter Shares to be Purchased
----------- ----------------------
EVEREN Securities, Inc........................... [ ]
Advest, Inc...................................... [ ]
Black & Company.................................. [ ]
TOTAL............................................ 4,000,000
=========
