Exhibit 1.1
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CSK AUTO CORPORATION
(a Delaware corporation)
11,283,967 Shares of Common Stock
PURCHASE AGREEMENT
Dated: June __, 2002
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TABLE OF CONTENTS
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SECTION 1. Representations and Warranties. .......................... 3
(a) Representations and Warranties by the Company ............ 3
(b) Representations and Warranties by the Selling Shareholders 10
(c) Officer's Certificates ................................... 12
SECTION 2. Sale and Delivery to Underwriters; Closing. .............. 12
(a) Initial Securities ....................................... 12
(b) Option Securities ........................................ 12
(c) Payment .................................................. 13
(d) Denominations; Registration .............................. 13
SECTION 3. Covenants of the Company ................................. 14
(a) Compliance with Securities Regulations and Commission
Requests ................................................. 14
(b) Filing of Amendments ..................................... 14
(c) Delivery of Registration Statements ...................... 14
(d) Delivery of Prospectuses ................................. 15
(e) Continued Compliance with Securities Laws ................ 15
(f) Blue Sky Qualifications .................................. 15
(g) Rule 158 ................................................. 15
(h) Use of Proceeds .......................................... 16
(i) Listing .................................................. 16
(j) Restriction on Sale of Securities ........................ 16
(k) Reporting Requirements ................................... 16
SECTION 4. Payment of Expenses. ..................................... 16
(a) Expenses ................................................. 16
(b) Expenses of the Selling Shareholders ..................... 17
(c) Termination of Agreement ................................. 17
(d) Allocation of Expenses ................................... 17
SECTION 5. Conditions of Underwriters' Obligations .................. 17
(a) Effectiveness of Registration Statement .................. 17
(b) Opinion of Counsel for Company ........................... 18
(c) Opinion of Counsel for the Selling Shareholders .......... 18
BBB-i
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(d) Opinion of Counsel for Underwriters ...................... 18
(e) Officers' Certificate .................................... 18
(f) Certificate of Selling Shareholders ...................... 19
(g) Accountant's Comfort Letter .............................. 19
(h) Bring-down Comfort Letter ................................ 19
(i) Approval of Listing ...................................... 19
(j) No Objection ............................................. 19
(k) Lock-up Agreements ....................................... 19
(l) Conditions to Purchase of Option Securities .............. 19
(m) Additional Documents ..................................... 20
(n) Termination of Agreement ................................. 20
SECTION 6. Indemnification. ......................................... 20
(a) Indemnification of Underwriters .......................... 20
(b) Indemnification of Company, Directors and Officers and
Selling Shareholders ..................................... 22
(c) Actions against Parties; Notification .................... 22
(d) Settlement without Consent if Failure to Reimburse ....... 23
(e) Other Agreements with Respect to Indemnification ......... 23
SECTION 7. Contribution. ............................................ 23
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery ................................................. 24
SECTION 9. Termination of Agreement. ................................ 24
(a) Termination; General ..................................... 24
(b) Liabilities .............................................. 25
SECTION 10. Default by One or More of the Underwriters ............... 25
SECTION 11. [Default by One or More of the Selling Shareholders or
the Company .............................................. 26
SECTION 12. Notices .................................................. 26
SECTION 13. Parties .................................................. 27
SECTION 14. GOVERNING LAW AND TIME ................................... 27
SECTION 15. Effect of Headings ....................................... 27
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SCHEDULES
Schedule A - List of Underwriters ...................... Sch A-1
Schedule B - List of Selling Shareholders .............. Sch B-1
Schedule C - Pricing Information ....................... Sch C-1
Schedule D - List of Subsidiaries ....................... Sch D-1
Schedule E - List of Persons subject to Lock-up ......... Sch E-1
Schedule F - List of Agreements with Registration Rights Sch F-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel ......... A-1
Exhibit AA - Form of Opinion of General Counsel .......... AA-1
Exhibit B - Form of Opinion for Glenellen ................ X-0
Xxxxxxx XX - Xxxx xx Xxxxxxx for Transatlantic ........... BB-1
Exhibit BBB - Form of Opinion for the Carmel Trust ....... BBB-1
Exhibit C - Form of Lock-up Letter ....................... C-1
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CSK AUTO CORPORATION
(a Delaware corporation)
11,283,967 Shares of Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
June __, 2002
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
UBS WARBURG LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX, SACHS & CO.
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
CSK Auto Corporation, a Delaware corporation (the "Company") and the
entities listed in Schedule B hereto (the "Selling Shareholders"), confirm their
respective agreements with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Xxxxxxx Xxxxx, UBS Warburg LLC, Credit Suisse First Boston
Corporation and Xxxxxxx, Sachs & Co. are acting as representatives (in such
capacity, the "Representatives"), with respect to (i) the sale by the Company
and the Selling Shareholders, acting severally and not jointly, and the purchase
by the Underwriters, acting severally and not jointly, of the respective numbers
of shares of Common Stock, par value $.01 per share, of the Company ("Common
Stock") set forth in Schedules A and B hereto and (ii) the grant by the Company
to the Underwriters, acting severally and not jointly, of the option described
in Section 2(b) hereof to purchase all or any part of 1,692,595 additional
shares of Common Stock to cover over-allotments, if any. The aforesaid
11,283,967 shares of Common Stock (the "Initial Securities") to be purchased by
the Underwriters and all or any part of the 1,692,595 shares of
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Common Stock subject to the option described in Section 2(b) hereof (the "Option
Securities") are hereinafter called, collectively, the "Securities".
The Company and the Selling Shareholders understand that the Underwriters
propose to make a public offering of the Securities as soon as the
Representatives deem advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-89982) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as the case may
be, that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Each prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, in the form first furnished to the Underwriters for
use in connection with the offering of the Securities is herein called the
"Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to the
preliminary prospectus dated June 6, 2002 together with the Term Sheet and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
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Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to each Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement
was issued and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. If Rule 434
is used, the Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through Xxxxxxx Xxxxx expressly for
use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when
so filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with this offering was identical to the
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electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), as applicable, and,
when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time the
Prospectus was issued and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), did not and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and
the summary financial information included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement. The pro forma financial statements and the related
notes, if any, included in the Registration Statement and the Prospectus
present fairly the information shown therein, the assumptions used in the
preparation of the pro forma financial statements provide a reasonable
basis for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those adjustments
to the corresponding historical financial statement amounts.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Effect"), (B) there
have been no
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transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one enterprise,
and (C) there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary"
of the Company (as such term is defined in Rule 1-02 of Regulation S-X)
(including CSK Auto, Inc., an Arizona Corporation, each a "Subsidiary"
and, collectively, the "Subsidiaries") has been duly organized and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
so to qualify or to be in good standing would not result in a Material
Adverse Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; none of the outstanding shares of
capital stock of any Subsidiary was issued in violation of the preemptive
or similar rights of any securityholder of such Subsidiary. The only
subsidiaries of the Company are the subsidiaries listed on Schedule D
hereto.
(viii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus (as of the
dates set forth therein) under the sections entitled "Prospectus
Summary--the Offering" and "Description of Capital Stock" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities, options
or warrants referred to in the Prospectus). The shares of issued and
outstanding capital stock of the Company, including the Securities to be
purchased by the Underwriters from the Selling Shareholders, have been
duly authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock, including the Securities
to be purchased by the Underwriters from the Selling Shareholders, was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
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(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Authorization and Description of Securities. The Securities to
be purchased by the Underwriters from the Company have been duly
authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued and fully paid and non-assessable; the Common Stock
conforms to all statements relating thereto contained in the Prospectus
and such description conforms to the rights set forth in the instruments
defining the same; no holder of the Securities will be subject to personal
liability by reason of being such a holder; and the issuance of the
Securities is not subject to the preemptive or other similar rights of any
securityholder of the Company.
(xi) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which it or any of them may be bound, or to which any of the property
or assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectus under the caption
"Use of Proceeds") and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any subsidiary
or any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any subsidiary or any of
their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any
subsidiary.
(xii) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, which may reasonably be expected to result in a
Material Adverse Effect.
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(xiii) Absence of Proceedings. There is no action, suit, proceeding
or investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any subsidiary,
which if determined adversely to the Company or such subsidiary would
singly or in the aggregate, have a Material Adverse Effect, or would
materially and adversely affect the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its
obligations hereunder; the aggregate of all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or of which
any of their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
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, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company nor any of its subsidiaries
has received any notice of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any facts
or circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the subject
of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material Adverse
Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale
of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been already obtained
or as may be required under the 1933 Act or the 1933 Act Regulations or
state securities laws.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and
its subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all of
the Governmental Licenses are
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valid and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be
in full force and effect would not have a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company and
its subsidiaries and good title to all other properties owned by them, in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such as
(a) are described in the Prospectus or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the primary uses made and proposed to be made of such
property by the Company or any of its subsidiaries; and all of the leases
and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or
any of its subsidiaries holds properties described in the Prospectus, are
in full force and effect as of the dates set forth therein, and neither
the Company nor any of its subsidiaries has any notice of any claim of any
sort that has been asserted by anyone adverse to the rights of the Company
or any of its subsidiaries under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased premises
under any such lease or sublease which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(xix) Investment Company Act. The Company is not an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
United States Investment Company Act of 1940 (the "Investment Company
Act"); and the Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be required to register as an
"investment company" as defined in the Investment Company Act.
(xx) Environmental Laws. Except as would not, individually or in the
aggregate, have a Material Adverse Effect or otherwise require disclosure
in the Registration Statement, (i) neither the Company nor any of its
subsidiaries has been or is in violation of any federal, state or local
laws and regulations relating to pollution or protection of human health
or the environment, including, without limitation, laws and regulations
relating to emissions, discharges, releases or threatened releases of
toxic or hazardous substances, materials or wastes, or petroleum and
petroleum products ("Materials of Environmental Concern"), or otherwise
relating to the protection of human health and safety, or the use,
treatment, storage, disposal, transport or handling of Materials of
Environmental Concern (collectively, "Environmental Laws"), which
violation includes, but is not limited to, noncompliance with, or lack of,
any permits or other environmental authorizations; (ii) there are no
circumstances, either past, present or that are reasonably foreseeable,
that may lead to any such violation in the future; (iii) neither the
Company nor any of its subsidiaries has received any communication
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(written or oral), whether from a governmental authority or otherwise,
alleging any such violation; (iv) there is no pending or threatened claim,
action, investigation or notice (written or oral) by any person or entity
alleging potential liability of the Company or any of its subsidiaries (or
against any person or entity for whose acts or omissions the Company or
any of its subsidiaries is or may reasonably be expected to be liable,
either contractually or by operation of law) for investigatory, cleanup,
or other response costs, or natural resources or property damages, or
personal injuries, attorney's fees or penalties relating to (A) the
presence, or release into the environment, of any Materials of
Environmental Concern at any location, or (B) circumstances forming the
basis of any violation or potential violation, of any Environmental Law
(collectively, "Environmental Claims"); and (v) there are no past or
present actions, activities, circumstances, conditions, events or
incidents that could form the basis of any Environmental Claim.
(xxi) Internal Accounting Controls. The Company and each subsidiary
of the Company 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 generally accepted
accounting principles and to maintain asset accountability; (iii) access
is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxii) Taxes. All material Tax returns required to be filed by the
Company and its Subsidiaries have been filed and all such returns are
true, complete, and correct in all material respects. All material Taxes
that are due or claimed to be due from the Company and its Subsidiaries
have been paid other than those (i) currently payable without penalty or
interest or (ii) being contested in good faith and by appropriate
proceedings and for which, in the case of both clauses (i) and (ii),
adequate reserves have been established on the books and records of the
Company and its Subsidiaries in accordance with GAAP. There are no
proposed material Tax assessments against the Company or any of its
Subsidiaries as to which the Company has been notified. The accruals and
reserves on the books and records of the Company and its Subsidiaries in
respect of any material Tax liability for any Taxable period not finally
determined are reasonably adequate to meet any assessments of Tax for any
such period. For purposes of this Purchase Agreement, the term "Tax" and
"Taxes" shall mean all Federal, state, local and foreign taxes, and other
assessments of a similar nature (whether imposed directly or through
withholding), including any interest, additions to tax, or penalties
applicable thereto.
(xxiii) Registration Rights. Other than the agreements listed in
Schedule F hereto, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the
9
Act. No such person (except for the Selling Shareholders, whose Common
Stock is being registered pursuant to the Registration Statement)
currently has any rights to require the Company to include any securities
in the Securities registered pursuant to the Registration Statement.
(b) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder severally represents and warrants to each Underwriter as of
the date hereof and as of the Closing Time, and agrees with each Underwriter, as
follows:
(i) Accurate Disclosure. Each Selling Shareholder has reviewed the
Registration Statement, and the sale of the Offered Securities by such
Selling Stockholder pursuant hereto is not prompted by any information
concerning the Company or any of its subsidiaries which is not set forth
in the Prospectus or any supplement thereto. The information in the
Registration Statement under the caption "Principal and Selling
Stockholders" which specifically relates to such Selling Shareholder does
not, and will not on the Closing Date, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(ii) Authorization of Agreements. Each Selling Shareholder has the
full right, power and authority to enter into this Agreement and a Power
of Attorney and Custody Agreement (the "Power of Attorney and Custody
Agreement") and to sell, transfer and deliver the Securities to be sold by
such Selling Shareholder hereunder. The execution and delivery of this
Agreement and the Power of Attorney and Custody Agreement and the sale and
delivery of the Securities to be sold by such Selling Shareholder and the
consummation of the transactions contemplated herein and compliance by
such Selling Shareholder with its obligations hereunder have been duly
authorized by such Selling Shareholder and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any tax, lien, charge or encumbrance upon the
Securities to be sold by such Selling Shareholder or any property or
assets of such Selling Shareholder pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, license, lease or
other agreement or instrument to which such Selling Shareholder is a party
or by which such Selling Shareholder may be bound, or to which any of the
property or assets of such Selling Shareholder is subject, nor will such
action result in any violation of the provisions of the charter or by-laws
or other organizational instrument of such Selling Shareholder, if
applicable, or any applicable treaty, law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
such Selling Shareholder or any of its properties.
(iii) Good and Marketable Title. Such Selling Shareholder has and
will at the Closing Time have valid and marketable title to the Securities
to be sold by such Selling Shareholder hereunder, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind, other than pursuant to this Agreement; and upon
delivery of such Securities and payment of the purchase price therefor as
herein contemplated, assuming each such Underwriter has no notice of any
adverse claim, each
10
of the Underwriters will receive good and marketable title to the
Securities purchased by it from such Selling Shareholder, free and clear
of any security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind.
(iv) Due Execution of Power of Attorney and Custody Agreement. Such
Selling Shareholder has duly executed and delivered, in the form
heretofore furnished to the Representatives, the Power of Attorney and
Custody Agreement with Xxxxxx Xxxxx or Xxxxx Xxxxx, as applicable, as
attorney-in-fact (the "Attorney-in-Fact") and Jenkens & Xxxxxxxxx Xxxxxx
Xxxxxx LLP, as custodian (the "Custodian"); the Custodian is authorized to
deliver the Securities to be sold by such Selling Shareholder hereunder
and to accept payment therefor; and the Attorney-in-Fact is authorized to
execute and deliver this Agreement and the certificate referred to in
Section 5(f) or that may be required pursuant to Section 5(l) and 5(m) on
behalf of such Selling Shareholder, to sell, assign and transfer to the
Underwriters the Securities to be sold by such Selling Shareholder
hereunder, to determine the purchase price to be paid by the Underwriters
to such Selling Shareholder, as provided in Section 2(a) hereof, to
authorize the delivery of the Securities to be sold by such Selling
Shareholder hereunder, to accept payment therefor, and otherwise to act on
behalf of such Selling Shareholder in connection with this Agreement.
(v) Absence of Manipulation. Such Selling Shareholder has not taken,
and will not take, directly or indirectly, any action which is designed to
or which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(vi) Absence of Further Requirements. No filing with, or consent,
approval, authorization, license, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the performance by each Selling
Shareholder of its obligations hereunder or in the Power of Attorney and
Custody Agreement, or in connection with the offer, sale and delivery of
the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as may have previously been
made or obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws.
(vii) Restriction on Sale of Securities. During a period of 90 days
from the date of the Prospectus, such Selling Shareholder will not,
without the prior written consent of UBS Warburg LLC, (i) 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 transfer or dispose of, directly or indirectly, any
share of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the
1933 Act with respect to any of the foregoing or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock or such other
11
securities, in cash or otherwise. The foregoing sentence shall not apply
to the Securities to be sold hereunder.
(viii) Certificates Suitable for Transfer. Certificates for all of
the Securities to be sold by such Selling Shareholder pursuant to this
Agreement, in suitable form for transfer by delivery or accompanied by
duly executed instruments of transfer or assignment in blank with
signatures guaranteed, have been placed in custody with the Custodian with
irrevocable conditional instructions to deliver such Securities to the
Underwriters pursuant to this Agreement.
(ix) No Association with NASD. Neither such Selling Stockholder nor
any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, or has any other association with (within the meaning of Article I,
Section 1(m) of the By-laws of the National Association of Securities
Dealers, Inc.), any member firm of the National Association of Securities
Dealers, Inc.
(c) Officer's Certificates. Any closing certificate signed by any officer
of the Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters pursuant to the terms of this Agreement shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby; and any certificate signed by or on behalf of the
Selling Shareholders as such and delivered to the Representatives or to counsel
for the Underwriters pursuant to the terms of this Agreement shall be deemed a
representation and warranty by such Selling Shareholder to the Underwriters as
to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company and each Selling Shareholder, severally and not jointly, agree to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Company and each Selling
Shareholder, at the price per share set forth in Schedule C, that proportion of
the number of Initial Securities set forth in Schedule B opposite the name of
the Company or such Selling Shareholder, as the case may be, which the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, bears to the total number of Initial Securities, subject, in
each case, to such adjustments among the Underwriters as the Representatives in
their sole discretion shall make to eliminate any sales or purchases of
fractional securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to an additional 1,692,595 shares of Common
Stock, as set forth in Schedule B, at the price per share set forth in Schedule
C, less an amount per share equal to any dividends or distributions declared by
the Company and payable on the Initial Securities but not payable on the Option
Securities. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or
12
in part from time to time only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of the Initial
Securities upon notice by the Representatives to the Company setting forth the
number of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such
Option Securities. Any such time and date of delivery (a "Date of Delivery")
shall be determined by the Representatives, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing Time, as hereinafter defined. If the option is exercised as to all
or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter bears to the total
number of Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx,
XX 00000, or at such other place as shall be agreed upon by the Representatives
and the Company and the Selling Shareholders, at 7:00 A.M. (California time) on
the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any
given day) business day after the date hereof (unless postponed in accordance
with the provisions of Section 10), or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives and
the Company and the Selling Shareholders (such time and date of payment and
delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Company, on each Date of Delivery as specified in the notice from the
Representatives to the Company.
Payment shall be made to the Company and the Selling Shareholders by wire
transfer of immediately available funds to bank accounts designated by the
Company and the Custodian pursuant to each Selling Shareholder's Power of
Attorney and Custody Agreement, as the case may be, against delivery to the
Representatives for the respective accounts of the Underwriters of certificates
for the Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. Xxxxxxx Xxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and
13
the Option Securities, if any, will be made available for examination and
packaging by the Representatives in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Representatives immediately, and
confirm the notice in writing, (1) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Company will give the Representatives notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, whether pursuant
to the 1933 Act, the 1934 Act or otherwise, will furnish the Representatives
with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters shall
reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Representatives and counsel for the Underwriter, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including, if requested by any Underwriter, exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
14
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
15
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the listing
of the Securities on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 90 days from the
date of the Prospectus, the Company will not, without the prior written consent
of UBS Warburg LLC, (i) directly or indirectly, 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 transfer or
dispose of any share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or file any registration statement
under the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Securities to be sold hereunder, (B) any shares of Common Stock issued by
the Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the Prospectus, (C)
any shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company referred to in the
Prospectus or (D) any shares of Common Stock issued pursuant to any non-employee
director stock plan or dividend reinvestment plan.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. Except as otherwise set forth herein, the Company will pay
or cause to be paid all expenses incident to the performance of its obligations
and the obligations of the Selling Shareholders under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees
and disbursements of the Company's counsel, accountants and other advisors, (v)
the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto, (vii) the
16
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Securities and (x) the fees and expenses
incurred in connection with the listing of the Securities on the New York Stock
Exchange. Notwithstanding anything to the contrary in this Section 4, the cost
or expense of all underwriting discounts and selling commissions applicable to
the sale of Securities pursuant to this Agreement shall be borne by each Selling
Shareholder and the Company, in proportion to the number of shares sold by each
such party.
(b) Expenses of the Selling Shareholders. The Selling Shareholders will
pay all expenses incident to the performance of their respective obligations
under, and the consummation of the transactions contemplated by this Agreement,
including (i) any stamp duties, capital duties and stock transfer taxes, if any,
payable upon the sale of the Securities owned by each of them to the
Underwriters, and their transfer between the Underwriters pursuant to an
agreement between such Underwriters, and (ii) the fees and disbursements of
their respective counsel and accountants.
(c) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5, Section 9(a)(i)
or Section 11 hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters; provided, however, that if any such termination of
this Agreement is caused by, or based upon, a default by one or more Selling
Shareholders as referred to in Section 11 of this Agreement, or the failure of
one or more Selling Shareholders to comply with its requirements under Section 5
of this Agreement, then the Selling Shareholders shall reimburse the
Underwriters for such expenses..
(d) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and the Selling Shareholders may make for
the sharing of such costs and expenses.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company or on behalf of any Selling Shareholder
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to
17
rely upon Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Representatives
shall have received the favorable opinions, dated as of Closing Time, of Xxxxxx,
Xxxx & Xxxxxxxx LLP, counsel for the Company, and Xxx Xxxxxx, General Counsel of
the Company, in each case, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters to the effect set forth in Exhibits A and AA hereto.
(c) Opinion of Counsel for the Selling Shareholders. At Closing Time,
the Representatives shall have received the favorable opinions, dated as of
Closing Time, of (i) Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP, (ii) Xxxxxxx Xxxxx,
Xxxxxxx & Xxxxxxxxx and (iii) Torys LLP, counsel for the Selling Shareholders,
in form and substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibits B, BB and BBB hereto.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Skadden, Arps, Slate, Xxxxxxx and Xxxx LLP, counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters with respect to the matters set forth in clauses (i),
(ii), (v), (vi) (solely as to preemptive or other similar rights arising by
operation of law or under the charter or by-laws of the Company), (viii) through
(x), inclusive, (xiii), (xv) (solely as to the information in the Prospectus
under "Description of Capital Stock--Common Stock") and the penultimate
paragraph of Exhibit A hereto. In giving such opinion such counsel may rely, as
to all matters governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of each of the Company, dated
as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1(a) hereof
are true and correct with the same force and effect as though expressly made at
and as of Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or are contemplated by the Commission.
18
(f) Certificate of Selling Shareholders. At Closing Time, the
Representatives shall have received a certificate of an Attorney-in-Fact on
behalf of or an executive officer of each Selling Shareholder, dated as of
Closing Time, to the effect that (i) the representations and warranties of each
Selling Shareholder contained in Section 1(b) hereof are true and correct in all
respects with the same force and effect as though expressly made at and as of
Closing Time and (ii) each Selling Shareholder has complied in all material
respects with all agreements and all conditions on its part to be performed
under this Agreement at or prior to Closing Time.
(g) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from PricewaterhouseCoopers,
LLP a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(h) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from PricewaterhouseCoopers, LLP a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (g) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(i) Approval of Listing. At Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange, subject only to official
notice of issuance.
(j) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(k) Lock-up Agreements. At the date of this Agreement, the
Representatives shall have received an agreement substantially in the form of
Exhibit C hereto signed by the persons listed on Schedule E hereto.
(l) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company contained herein and the statements in any certificates furnished
by the Company and any subsidiary of the Company hereunder shall be true and
correct as of each Date of Delivery and, at the relevant Date of Delivery, the
Representatives shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company confirming that
the certificate delivered at the Closing Time pursuant to Section 5(e)
hereof remains true and correct as of such Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of
Xxxxxx, Xxxx & Xxxxxxxx, LLP, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option
19
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriters. The favorable opinion of
Skadden, Arps, Slate, Xxxxxxx and Xxxx LLP, counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(d) hereof.
(iv) Bring-down Comfort Letter. A letter from
PricewaterhouseCoopers, LLP, in form and substance satisfactory to the
Representatives and dated such Date of Delivery, substantially in the same
form and substance as the letter furnished to the Representative(s)
pursuant to Section 5(g) hereof, except that the "specified date" in the
letter furnished pursuant to this paragraph shall be a date not more than
five days prior to such Date of Delivery.
(m) Additional Documents. At Closing Time and at each Date of Delivery
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Selling Shareholders in connection with the
issuance and sale of the Securities as herein contemplated shall be satisfactory
in form and substance to the Representatives and counsel for the Underwriters.
(n) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities
on a Date of Delivery which is after the Closing Time, the obligations of the
several Underwriters to purchase the relevant Option Securities, may be
terminated by the Representatives by notice to the Company at any time at or
prior to Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any
such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act to the extent and in the manner set forth in clauses (i), (ii) and
(iii) below. In addition, each Selling Shareholder, severally and not jointly,
agrees to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or
20
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Company and the Selling Shareholders; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and, provided, further,
that the Company will not be liable to any Underwriter with respect to any
prospectus to the extent that the Company shall sustain the burden of proving
that any such loss, liability, claim, damage or expense resulted from the fact
that such Underwriter, in contravention of a requirement of this Agreement or
applicable law, sold Securities to a person to whom such Underwriter failed to
send or give, at or prior to the Closing Date, a copy of the Prospectus, as then
amended or supplemented if: (i) the Company has previously furnished copies
thereof (sufficiently in advance of the Closing Date to allow for distribution
by the Closing Date) to the Underwriter and the loss, liability, claim, damage
or expense of such Underwriter resulted from an untrue statement or omission of
a material fact contained in or omitted from the preliminary Prospectus which
was corrected in the Prospectus as, if applicable, amended or supplemented prior
to the Closing Date and such Prospectus was required by law to be delivered at
or prior to the written confirmation of sale to such person and (ii) such
failure to give or send such Prospectus by the Closing Date to the party or
parties asserting such loss, liability, claim, damage or expense would have
constituted the sole defense to the claim asserted by such person; provided,
further that the Selling Shareholders shall only be subject to such liability to
the extent that the untrue statement or alleged untrue statement or omission or
alleged omission is based upon information provided in writing by such Selling
Shareholder or contained in a representation or warranty given by such Selling
Shareholder in
21
this Agreement or the Custody Agreement; and provided, further, that the
liability under this subsection of each Selling Shareholder shall be limited to
an amount equal to the aggregate gross proceeds after underwriting commissions
and discounts, but before expenses, to such Selling Shareholder from the sale of
Securities sold by such Selling Shareholder hereunder.
(b) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and each Selling
Shareholder and each person, if any, who controls any Selling Shareholder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in this Section 6, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
22
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into, and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement; provided that an indemnifying party shall not be liable for any such
settlement effected without its consent if such indemnifying party, prior to the
date of such settlement, (1) reimburses such indemnified party in accordance
with such request for the amount of such fees and expenses of counsel as the
indemnifying party believes in good faith to be reasonable, and (2) provides
written notice to the indemnified party that the indemnifying party disputes in
good faith the reasonableness of the unpaid balance of such fees and expenses.
(e) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement among the Company and the Selling
Shareholders with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other hand from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Shareholders on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Selling Shareholders
on the one hand and the Underwriters on the other hand in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses) received
by the Company and the Selling Shareholders and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet bear to the aggregate initial public offering price of the Securities as
set forth on such cover.
The relative fault of the Company and the Selling Shareholders on the one
hand and the Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Selling Shareholders
23
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or any
Selling Shareholder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company or
such Selling Shareholder, as the case may be. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries or the
Selling Shareholders submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company or the
Selling Shareholders, and shall survive delivery of the Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company and the Selling Shareholders, at any time at
or prior to Closing Time (i) if
24
there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus (exclusive
of any supplement thereto), any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or in the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Representatives, impracticable or inadvisable to market
the Securities or to enforce contracts for the sale of the Securities, or (iii)
if trading in any securities of the Company has been suspended or materially
limited by the Commission or the New York Stock Exchange, or if trading
generally on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters; or
(ii) if the number of Defaulted Securities exceeds 10% of the number
of Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the Underwriters to purchase and of the Company to sell the
Option Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting Underwriter.
25
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either (i) the Representatives or (ii) the Company and any
Selling Shareholder shall have the right to postpone Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. [Default by One or More of the Selling Shareholders or the
Company.
(a) If a Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of Securities which such Selling
Shareholder or Selling Shareholders are obligated to sell hereunder, [and the
remaining Selling Shareholders] do not exercise the right hereby granted to
increase, pro rata or otherwise, the number of Securities to be sold by them
hereunder to the total number to be sold by all Selling Shareholders as set
forth in Schedule B hereto, then the Underwriters may, at option of the
Representatives, by notice from the Representatives to the Company and the
non-defaulting Selling Shareholders, either (i) terminate this Agreement without
any liability on the fault of any non-defaulting party except that the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or
(b) elect to purchase the Securities which the non-defaulting Selling
Shareholders and the Company have agreed to sell hereunder. No action taken
pursuant to this Section 11 shall relieve any Selling Shareholder so defaulting
from liability, if any, in respect of such default.]
In the event of a default by any Selling Shareholder as referred to in
this Section 11, each of the Representative(s), the Company and the
non-defaulting Selling Shareholders shall have the right to postpone Closing
Time or Date of Delivery for a period not exceeding seven days in order to
effect any required change in the Registration Statement or Prospectus or in any
other documents or arrangements.
(b) If the Company shall fail at Closing Time or at the Date of Delivery
to sell the number of Securities that it is obligated to sell hereunder, then
this Agreement shall terminate without any liability on the part of any
nondefaulting party; provided, however, that the provisions of Sections 1, 4, 6,
7 and 8 shall remain in full force and effect. No action taken pursuant to this
Section shall relieve the Company from liability, if any, in respect of such
default.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at 00000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, attention of [ ]; notices
to the Company shall be directed to it at 000 X. Xxxxxxxx Xxx. Xxxxx 000,
Xxxxxxx, XX
26
85012, attention of Chief Financial Officer; and notices to the Selling
Shareholders shall be directed to the address set forth below such Selling
Shareholders' names on Schedule B hereto.
SECTION 13. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company and the Selling Shareholders and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and the Selling Shareholders and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company and the Selling Shareholders and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. UNLESS
OTHERWISE INDICATED, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholders a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Underwriters,
the Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
CSK AUTO CORPORATION
By _________________________________
Name:
Title:
CHILTERN TRUSTEES LIMITED,
as Trustee of Carmel Trust
By _________________________________
Xxxxxx Xxxxx, as Attorney-in-Fact
GLENELLEN INVESTMENT CO.
By _________________________________
Xxxxxx Xxxxx, as Attorney-in-Fact
TRANSATLANTIC INVESTMENTS, LLC
By _________________________________
Xxxxx Xxxxx, as Attorney-in-Fact
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
UBS WARBURG LLC CREDIT
SUISSE FIRST BOSTON CORPORATION
XXXXXXX, SACHS & CO.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By __________________________________
Name:
Title:
Authorized Signatory
For itself and as Representative of the other Underwriters named in Schedule A
hereto.
SCHEDULE A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated..........
UBS Warburg LLC.............................................
Credit Suisse First Boston Corporation......................
Xxxxxxx, Sachs and Co. .....................................
----------
Total....................................................... 11,283,967
==========
A-1
SCHEDULE B
Number of Initial Maximum Number of Option
Securities to be Sold Securities to Be Sold
--------------------- ---------------------
CSK Auto Corporation 5,642,000 1,692,595
Chiltern Trustees Limited, 497,282 --
as Trustee of Carmel Trust
c/o Skadden, Arps, Slate,
Xxxxxxx
& Xxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Glenellen Investment Co. 4,600,000 --
c/o Skadden, Arps, Slate,
Xxxxxxx
& Xxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Transatlantic Investments, LLC 544,685 --
X.X. Xxx 000
Xxxx Xxxxxxxxx, Xxx Xxxxxx
00000
Attention: Xxxxx X. Xxxx,
Executive Vice President
Total............... 11,283,967 1,692,595
SCHEDULE C
CSK AUTO CORPORATION
11,283,967 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $[ ].
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $[ ], being an amount equal to the initial public
offering price set forth above less $[ ] per share; provided that the purchase
price per share for any Option Securities purchased upon the exercise of the
over-allotment option described in Section 2(b) shall be reduced by an amount
per share equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option Securities.
C-1
SCHEDULE D
List of Subsidiaries
CSK Auto, Inc.
Automotive Information Systems, Inc.
XXXXXXX.XXX, Inc.
D-1
SCHEDULE E
List of persons and entities subject to lock-up
Equity CSKa Limited
Equity CSKb Limited
Equity CSKc Limited
Auto Equity Limited
Auto Parts Limited
Auto Investments Limited
CSK Investments Limited
CSK Equity Limited
New CSK Equity Limited
Investcorp CSK Holdings L.P.
CSK International Limited
X.X. Xxxxxx (Suisse) S.A., as successor to Chase Bank (C.I.) Nominees Limited
South Bay Limited
Investcorp Investment Equity Limited
Ballet Limited
Denary Limited
Gleam Limited
Highlands Limited
Noble Limited
Outrigger Limited
Quill Limited
Radial Limited
Shoreline Limited
Zinnia Limited
Chiltern Trustees Limited, in its capacity as trustee of The Carmel Trust
Glenellen Investment Co.
Transatlantic Investments, LLC
The JAB Trust
Xxxxxx Brothers Holdings Inc.
Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxx Xxxx
Xxxxx Xxxxxx
Xxx Xxxxxx
Xxx Xxxxx
Xxx Xxxxxx
Xxxxx Xxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxx
Xxxxxx Xxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxxx Xxxxx
Xxxxxxxxx Xxxxxxx Xxxxx XX
Xxxxxx Xxxxx
Xxxxxxxxxxx X. Xxxxxxx
Xxxxx Xxxxx
Xxxxx Xxxxx
Xxxxx X. Xxxx
E-1
SCHEDULE F
List of Agreements with Registration Rights
1) Stockholders' Agreement dated as of October 30, 1996, as thereafter
amended and supplemented, by and between the Investcorp Group (as defined
therein), the Carmel Group (as defined therein), the Company and other named
stockholders.
2) Amended and Restated Registration Rights Agreement dated as of May 16,
2002, by and between CSK Auto Corporation and LBI Group Inc. and Investcorp CSK
Holdings L.P. (relating to $50MM 7% convertible debentures).
3) Registration Rights Agreement dated August 14, 2001, by and between CSK
Auto Corporation and Xxxxxxxxxxx Capital Investment Fund (relating to $30MM 7%
convertible note).
4) Registration Rights Agreement dated December 21, 2001, by and between
Credit Suisse First Boston Corporation, X.X. Xxxxxx Securities Inc., UBS Warburg
LLC and CSK Auto Inc., as issuer, and the Guarantors identified therein
(relating to 12% Senior Notes).
F-1
EXHIBIT A
FORM OF OPINION OF XXXXXX, XXXX & XXXXXXXX LLP
TO BE DELIVERED PURSUANT TO SECTION 5(B)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(iii) The Securities to be purchased by the Underwriters from the Company
have been duly authorized for issuance and sale to the Underwriters pursuant to
the Purchase Agreement and, when issued and delivered by the Company pursuant to
the Purchase Agreement against payment of the consideration set forth in the
Purchase Agreement, will be validly issued and fully paid and non-assessable and
no holder of the Securities is or will be subject to personal liability solely
by reason of being such a holder.
(iv) The issuance and sale of the Securities by the Company and the sale
of the Securities by the Selling Shareholders is not subject to the preemptive
or other similar rights of any securityholder of the Company under the Delaware
General Corporation Law, the Company's charter or bylaws or any contract filed
as an exhibit to the Company's most recent Form 10-K and any exhibits filed by
the Company with any subsequent SEC filings.
(v) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and, to the best of our knowledge based
solely upon telephonic advice from the staff of the Commission on the date
hereof, no stop order suspending the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending or
threatened by the Commission.
(vii) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement and
Prospectus, excluding the documents incorporated by reference therein, as of
their respective effective or issue dates (other than the financial statements
and supporting schedules included therein or omitted therefrom, as to which we
need express no opinion) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(viii) The form of certificate used to evidence the Common Stock complies
in all material respects with all applicable statutory requirements, with any
applicable requirements of the charter and by-laws of the Company and the
requirements of the New York Stock Exchange.
(ix) The due authorization, execution, delivery and performance by the
Company of the Purchase Agreement, and the issuance, sale and delivery of the
Securities in compliance with the terms and provisions of the Purchase
Agreement, will not require any consent, authorization, filing with or approval
of any governmental authority or regulatory body of the State of New York or the
United States
EXHIBIT A-1
of America under any law or regulation of the State of New York or the United
States of America applicable to the Company (other than under the 1933 Act and
the 1933 Act Regulations, which have been obtained, or as may be required under
the securities or blue sky laws of the various states, as to which we need
express no opinion) that, in our experience, is generally applicable to
transactions in the nature of those contemplated by the Purchase Agreement,
except for such filings or approvals that, if not made or obtained, would not
have a Material Adverse Effect.
(x) The execution, delivery and performance of the Purchase Agreement and
the consummation of the transactions contemplated in the Purchase Agreement and
in the Registration Statement (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described in the
Prospectus under the caption "Use Of Proceeds") and compliance by the Company
with its obligations under the Purchase Agreement do not and will not, whether
with or without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined in Section
1(a)(xi) of the Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to those contracts filed as exhibits to the
Company's most recent Form 10-K and any exhibits filed by the Company with any
subsequent SEC filings (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a Material Adverse Effect),
nor will such action result in any violation of the provisions of the charter or
by-laws of the Company or any subsidiary.
(xi) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act.
The information in the Prospectus under "Description of Capital Stock",
"Material United States Federal Tax Considerations for Non-United States
Holders" and in the Registration Statement under Item 15, to the extent that it
constitutes summaries of legal matters, the Company's charter and bylaws, has
been reviewed by us and constitutes a fair summary of the legal matters and
documents described therein.
Such counsel shall state that (A) they have participated in conferences
with officers and other representatives of the Company, representatives of the
independent auditors of the Company and representatives of the Underwriters at
which the contents of the Registration Statement and related matters were
discussed, (B) because the purpose of their professional engagement was not to
establish or confirm factual matters and because the scope of our examination of
the affairs of the Company did not permit us to verify the accuracy,
completeness or fairness of the statements set forth in the Registration
Statement, such counsel are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement except to the extent set forth in the
sentence immediately preceding this paragraph and (C) on the basis of the
foregoing, and except for the financial statements and schedules and other
financial data included or incorporated by reference therein or omitted
therefrom as to which we express no such belief, no facts have come to our
attention that led us to believe that the Registration Statement, as of the date
it became effective or the Prospectus as of the time of its issuance or at the
Closing Time contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
EXHIBIT A-2
EXHIBIT AA
FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(B)
(i) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(ii) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus (as of the dates set forth therein) under the
sections entitled "Prospectus Summary--the Offering" and "Description of Capital
Stock" (except for subsequent issuances, if any, pursuant to the Purchase
Agreement or pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectus or pursuant to the exercise of convertible
securities, options or warrants referred to in the Prospectus); the shares of
issued and outstanding capital stock of the Company, including the Securities to
be purchased by the Underwriters from the Selling Shareholders, have been duly
authorized and validly issued and are fully paid and non-assessable; and none of
the outstanding shares of capital stock of the Company was issued in violation
of the preemptive or other similar rights of any securityholder of the Company.
(iii) Each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of my knowledge, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary.
(iv) To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding or investigation, to which the Company or any
subsidiary is a party, before or brought by any court or governmental agency or
body, domestic or foreign, which, if determined adversely to the Company or such
subsidiary, would have a Material Adverse Effect, or which would materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Purchase Agreement or the performance by the
Company of its obligations thereunder.
(v) All descriptions in the Registration Statement of contracts and other
documents to which the Company or its subsidiaries are a party are accurate in
all material respects; to the best
EXHIBIT A-1
of my knowledge, there are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the descriptions thereof or references
thereto are correct in all material respects.
(vi) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules included therein or omitted
therefrom, as to which I need express no opinion), when they became effective or
were filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder.
(vii) To the best of my knowledge, neither the Company nor any subsidiary
is in violation of its charter or by-laws and no default by the Company or any
subsidiary exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(viii) The execution, delivery and performance of the Purchase Agreement
and the consummation of the transactions contemplated in the Purchase Agreement
and in the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use Of Proceeds") and compliance
by the Company with its obligations under the Purchase Agreement do not and will
not, whether with or without the giving of notice or lapse of time or both,
result in a violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to me, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their respective properties, assets or
operations.
Nothing has come to my attention that led me to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which we need make no statement),
at the time such Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement thereto
(except for financial statements and schedules and other financial data included
or incorporated by reference therein or omitted therefrom, as to which we need
make no statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the
EXHIBIT A-2
Company and public officials. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
EXHIBIT A-3
EXHIBIT B
FORM OF OPINION OF COUNSEL FOR GLENELLEN
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, (other than the issuance of the order of the
Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state securities
laws, as to which we need express no opinion) is necessary or required to be
obtained by the Selling Shareholders for the performance by each Selling
Shareholder of its obligations under the Purchase Agreement or in the Power of
Attorney and Custody Agreement, or in connection with the offer, sale or
delivery of the Securities.
(ii) Each Power of Attorney and Custody Agreement has been duly executed
and delivered by the respective Selling Shareholders named therein and
constitutes the legal, valid and binding agreement of such Selling Shareholder.
(iii) The Purchase Agreement has been duly authorized, executed and
delivered by or on behalf of each Selling Shareholder.
(iv) The Attorney-in-Fact has been duly authorized by the Selling
Shareholders to deliver the Securities on behalf of the Selling Shareholders in
accordance with the terms of the Purchase Agreement.
(v) The execution, delivery and performance of the Purchase Agreement and
the Power of Attorney and Custody Agreement and the sale and delivery of the
Securities and the consummation of the transactions contemplated in the Purchase
Agreement and in the Registration Statement and compliance by each Selling
Shareholder with its obligations under the Purchase Agreement have been duly
authorized by all necessary action on the part of the Selling Shareholders and
do not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default under or
result in the creation or imposition of any tax, lien, charge or encumbrance
upon the Securities or any property or assets of the Selling Shareholders
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other instrument or agreement to which any
Selling Shareholder is a party or by which it may be bound, or to which any of
the property or assets of the Selling Shareholders may be subject nor will such
action result in any violation of the provisions of the charter or by-laws of
the Selling Shareholders, if applicable, or any law, administrative regulation,
judgment or order of any governmental agency or body or any administrative or
court decree having jurisdiction over such Selling Shareholder or any of its
properties.
(vi) To the best of our knowledge, each Selling Shareholder has valid and
marketable title to the Securities to be sold by such Selling Shareholder
pursuant to the Purchase Agreement, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind, and has full right,
power and authority to sell, transfer and deliver such Securities pursuant to
the Purchase Agreement. By delivery of a certificate or certificates therefor
such Selling Shareholder will transfer to the Underwriters who have purchased
such Securities pursuant to the Purchase Agreement (without notice of any defect
in the title of such Selling Shareholder and who are otherwise bona fide
purchasers for purposes of the Uniform Commercial Code) valid and marketable
title to such Securities, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind.
EXHIBIT B-1
EXHIBIT BB
FORM OF OPINION OF COUNSEL FOR TRANSATLANTIC
TO BE DELIVERED PURSUANT TO SECTION 5(c)
Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP
THE CHRYSLER BUILDING
000 XXXXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
(000) 000-0000
FACSIMILE (000) 000-0000
xxx.xxxxxxx.xxx
AUSTIN, TEXAS
(000) 000-0000
CHICAGO, ILLINOIS
(000) 000-0000
DALLAS, TEXAS
(000) 000-0000
HOUSTON, TEXAS
(000) 000-0000
LOS ANGELES, CALIFORNIA
(000) 000-0000
PASADENA, CALIFORNIA
(000) 000-0000
SAN ANTONIO, TEXAS
(000) 000-0000
WASHINGTON, D.C.
(000) 000-0000
June __, 2002
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated UBS Warburg LLC Credit
Suisse First Boston Corporation Xxxxxxx, Sachs & Co.
As representatives of the several Underwriters named in Schedule A to the
Purchase Agreement dated June __, 2002 among CSK Auto Corporation and each
of the Underwriters named in said Schedule
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: CSK Auto Corporation
Ladies and Gentlemen:
We have acted as special counsel to Transatlantic Investments,
LLC, a Delaware limited liability company ("Transatlantic"), in connection with
the sale by Transatlantic of 544,685 shares of Common Stock, $.01 par value per
share (the "Transatlantic Shares"), of CSK Auto Corporation ("CSK"). This
opinion letter is being delivered to you pursuant to Section 5(c) of the
Purchase Agreement dated June __, 2002 among you, CSK and the Selling
Shareholders named in Schedule B thereof (the "Purchase Agreement"). Each
capitalized term used but not defined herein shall have the meaning ascribed to
it in the Purchase Agreement.
EXHIBIT BB-1
In so acting, we have examined originals or copies,
satisfactory to us, of: (i) the Certificate of Formation of Transatlantic
certified by the Secretary of State of Delaware on June __, 2002; (ii) the
Limited Liability Company Agreement of Transatlantic certified by the sole
member of Transatlantic; (iii) a certificate of the sole member of Transatlantic
certifying resolutions adopted by it on June __, 2002; (iv) an executed copy of
the Purchase Agreement; (v) an executed copy of the Power of Attorney dated June
__, 2002 executed by Transatlantic (the "Transatlantic Power of Attorney"); (vi)
an executed copy of the Custody Agreement dated June __, 2002 by Transatlantic
to this firm (the "Transatlantic Custody Agreement"); and (vii) a copy of the
certificate representing the Shares to be sold by Transatlantic.
In addition, we have made such other investigations of
applicable law as we have deemed relevant and necessary as a basis for the
opinion hereinafter expressed.
In conducting our examination, we have assumed the genuineness
of all signatures, the legal capacity of all individual signatories, the
authenticity of all documents submitted to us as originals and the conformity
with the authentic original documents of all documents submitted to us as
certified, conformed, facsimile or photostatic copies. We have assumed, and
without independent investigation have relied exclusively upon, the factual
accuracy of the representations, warranties and other information contained in
the items we examined and upon the assumptions we have made herein. Also, we
have relied upon such certificates of public officials and of officers of the
sole member of Transatlantic with respect to the accuracy of factual matters
contained therein which were not independently established by us.
Where reference is made in this opinion letter to matters
within our knowledge, or to facts, circumstances or documents known to us, such
reference means the actual knowledge of those attorneys within our firm who have
given substantive attention to the Purchase Agreement and the transactions
contemplated thereby.
Our opinions are limited to the date hereof and we do not in
any event undertake to advise you of any facts or circumstances occurring or
coming to our attention subsequent to the date hereof.
We call your attention to the fact that we are counsel
admitted to practice only in the State of New York, and we do not express any
opinion with respect to the applicable laws, or the effect or applicability of
the laws, of any jurisdiction other than those of the State of New York, the
Delaware Limited Liability Company Act and the laws of the United States of
America. To the extent that New York law would defer to the laws of some other
jurisdiction, we have assumed (with your consent) that the applicable laws of
such other jurisdiction are identical to New York law. We do not express any
opinion with respect to the "blue sky" or securities laws of any State or other
jurisdiction (other than the federal securities laws of the United States of
America).
Based upon and subject to the foregoing and the other
qualifications, exceptions, assumptions, limitations, definitions and exclusions
contained in this letter, we are of the opinion that:
EXHIBIT BB-2
1. No filing with, or consent, approval, authorization, license,
order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other
than the issuance of the order of the Commission declaring the
Registration Statement effective and such authorizations,
approvals or consents as may be necessary under state
securities laws, as to which we express no opinion) is
necessary or required to be obtained by Transatlantic for the
performance by Transatlantic of its obligations under the
Purchase Agreement or the Transatlantic Power of Attorney and
the Transatlantic Custody Agreement, or in connection with the
offer, sale or delivery of the Securities.
2. The Transatlantic Power of Attorney and the Transatlantic
Custody Agreement have each been duly executed and delivered
by Transatlantic and constitute the legal, valid and binding
agreements of Transatlantic.
3. The Purchase Agreement has been duly executed and delivered by
or on behalf of Transatlantic.
4. The Attorney-in-Fact has been duly authorized by Transatlantic
to deliver the Securities on behalf of Transatlantic in
accordance with the terms of the Purchase Agreement.
5. The execution, delivery and performance of the Purchase
Agreement, the Transatlantic Power of Attorney and the
Transatlantic Custody Agreement and the sale and delivery of
the Securities and the consummation of the transactions
contemplated in the Purchase Agreement and in the Registration
Statement and compliance by Transatlantic with its obligations
under the Purchase Agreement have been duly authorized by all
necessary action on the part of Transatlantic and (A) do not
and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach
of or default under, or result in the creation or imposition
of any tax, lien, charge or encumbrance upon the Securities or
any property or assets of Transatlantic pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other instrument or
agreement of which we have knowledge to which Transatlantic is
a party or by which it is bound, or to which any of the
property or assets of Transatlantic are subject nor (B) will
such action result in any violation of the provisions of (i)
the Certificate of Formation or the Limited Liability Company
Agreement of Transatlantic, (ii) any law or administrative
regulation having jurisdiction over Transatlantic or any of
its properties that are applicable to Transatlantic or (iii)
to our knowledge, any judgment or order of any governmental
agency or body or any administrative or court decree having
jurisdiction over Transatlantic or any of its properties.
6. To our knowledge, Transatlantic has valid and marketable title
to the Securities to be sold by it pursuant to the Purchase
Agreement, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance
EXHIBIT BB-3
(other than pursuant to the Purchase Agreement), and
Transatlantic has the legal right, power and authority to
sell, transfer and deliver such Securities pursuant to the
Purchase Agreement. By delivery of a certificate or
certificates therefor, endorsed to the Underwriters, against
payment therefor by the Underwriters pursuant to the Purchase
Agreement, Transatlantic will transfer title to such
Securities to the Underwriters who have purchased such
Securities pursuant to the Purchase Agreement without notice
of any adverse claim, within the meaning of Section 8-105 of
the Uniform Commercial Code (as in effect in the State of New
York on the date hereof), free and clear of any adverse claim,
within the meaning of Section 8-102 of such Uniform Commercial
Code.
Xxxx X. Xxxxxx, a member of this firm, is an officer of
Transatlantic.
This opinion is rendered solely to you solely in connection
with the transactions contemplated by the Purchase Agreement, and only you are
entitled to rely hereon. This opinion may not be used or relied on by you for
any other purpose, or by any other person, firm, corporation or entity for any
purpose, without our prior written consent.
Very truly yours,
JENKENS & XXXXXXXXX XXXXXX XXXXXX LLP
EXHIBIT BB-4
EXHIBIT BBB
FORM OF OPINION OF COUNSEL FOR THE CARMEL TRUST
TO BE DELIVERED PURSUANT TO SECTION 5(c)
June [ ], 2002
To: XXXXXXX XXXXX & CO.
UBS WARBURG LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX, SACHS & CO.
as Representatives of the several Underwriters
Dear Ladies and Gentlemen:
Re: Purchase Agreement dated July 3, 2002
We refer to:
(a) the Purchase Agreement dated July 3, 2002 [ ] (the
"Purchase Agreement") between the underwriters identified on
the Purchase Agreement (the "Underwriters"), Chiltern Trustees
Limited as trustee (the "Trustee") of the Carmel Trust (the
"Trust"), a trust established under a trust settlement made
August 17, 1977 (the "Trust Settlement") and governed by the
laws of Ontario and the federal laws of Canada applicable in
Ontario and the persons identified in Schedule B attached
hereto;
(b) the Custody Agreement dated June 20, 2002 (the "Custody
Agreement") between Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx, LLP and
the Trustee; and
(c) the Irrevocable Power of Attorney of Selling Stockholder dated
June 20, 2002 (the "Power of Attorney") granted by the Trustee
and appointing Xxxxxx Xxxxx (the "Attorney-in-Fact") as the
attorney-in-fact for the Trustee in connection with certain
matters referred to herein.
The Purchase Agreement, Custody Agreement and Power
of Attorney are collectively referred to in this opinion
letter as the "Documents." Capitalized terms used and not
otherwise defined in this opinion letter have the meanings
respectively assigned to them in the Purchase Agreement.
EXHIBIT BB-1
We have acted as counsel to the Trustee solely for
the purpose of rendering the opinions herein. We have not been
involved in the preparation of the Documents or any other
documents associated therewith, and we have not participated
in any manner in discussions or negotiations in connection
with the Documents or those other documents or in connection
with any other matters incidental to the Documents or the
transactions contemplated by the Documents.
This opinion letter is provided to the Underwriters
at the request of the Trustee in partial satisfaction of the
condition set forth in Section 5(c) of the Purchase Agreement.
It is intended solely for the addressees in connection with
the transactions contemplated by the Documents and may not be
relied upon by any other person or for any other purpose
without our prior consent. No part of this opinion letter may
be incorporated, quoted or otherwise referred to in any other
document or communication or filed with or otherwise furnished
to any governmental authority or other person without our
prior written consent.
In rendering this opinion letter, we have made such
investigations as we deemed necessary including, without
limitation, reviewing the Trust Settlement and any amendments
thereto and the Resolution of the Trustee approving the
Purchase Agreement and authorizing the Attorney-in-Fact to
execute the Purchase Agreement on behalf of the Trustee,
approving the Custody Agreement and approving and granting the
Power of Attorney. We have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us
as originals, and the conformity with the original documents
of all documents submitted to us as copies. We are solicitors
qualified to carry on the practice of law in Ontario and we
express no opinion as to any laws or any matters governed by
any laws other than the laws of Ontario and the federal laws
of Canada applicable therein. Without limiting the generality
of the immediately preceding sentence, we express no opinion
with respect to the laws of any other jurisdiction to the
extent that those laws may govern the requirements for the
transfer of shares free of the claims of third parties, and we
express no opinion whether, pursuant to Ontario conflict of
laws rules, the laws of Ontario or the federal laws of Canada
would govern that issue. Except as to legal conclusions
expressed in this letter, we have assumed the accuracy of, and
without independent investigation have relied upon, the
representations, warranties and other information contained in
certificates as to certain factual matters from the Trustee
which we have examined.
We have also assumed that:
(a) the Custody Agreement constitutes a legal, valid and binding
obligation of each of the parties to that agreement other than
the Trustee;
(b) if any obligation under the Custody Agreement or the Power of
Attorney is required to be performed in any jurisdiction outside
of Ontario, the performance of that obligation will not be
illegal under the laws of that jurisdiction;
EXHIBIT BB-2
(c) the Trustee and Xxxxxx Xxxxx and Xxxxxx van Riemsdijk in their
capacity as Protectors of the Carmel Trust have complied with
their fiduciary obligations in connection with the
authorization, execution, delivery and performance of the
Documents and the transactions contemplated by the Documents;
and
(d) the Trustee is incorporated and existing, has the corporate
power and capacity to execute, deliver and perform its
obligations under the Documents, has taken all necessary
corporate action to authorize the execution, delivery and
performance by it of the Documents, has duly executed and
delivered the Custody Agreement and the Power of Attorney in
accordance with those corporate authorizations, and the
execution, delivery and performance of the Documents by the
Trustee do not violate the constating documents of the Trust nor
any corporate law, statute, rule or regulation to which the
Trustee is subject.
For the purpose of our opinions in paragraph 6 below,
which are expressed to be given based on our knowledge, "our
knowledge" means the actual knowledge of those lawyers in our
firm (Xxxxxxx Xxxxxx-Xxxxx and Xxxx Xxxxxxx) who were the
lawyers primarily involved in the preparation of our opinions
below, without any independent investigation. Our opinions are
limited to the date hereof, and we do not in any event
undertake to advise you of any facts or circumstances
occurring or coming to our attention subsequent to the date
hereof.
Based upon and subject to the foregoing, and to the
qualifications expressed below, we are of the opinion that:
1. No filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than in connection with
any applicable securities, tax, competition or anti-trust laws or laws
applicable to foreign investment in Canada, as to which we express no
opinion) is necessary or required to be obtained by the Trust for the
performance by the Trust of its obligations under the Purchase
Agreement or in the Power of Attorney and Custody Agreement, or in
connection with the offer, sale or delivery of the Securities to be
sold by the Trustee on behalf of the Trust (the "Trustee's
Securities").
2. Each Power of Attorney and Custody Agreement has been duly executed and
delivered by the Trustee on behalf of the Trust.
3. If an action or proceeding were brought in an Ontario court to enforce
the Custody Agreement or the Power of Attorney and that court were to
apply the laws of Ontario to govern and interpret the Custody Agreement
or the Power of Attorney (either because that court finds that,
contrary to the express provisions of the Custody Agreement and the
Power of Attorney which stipulate that they will be governed by New
York State law, Ontario law is the proper law of the Custody Agreement
or the Power of Attorney or because New York State law is not proven in
that action or proceeding), each of the Custody Agreement and the Power
of Attorney constitutes the legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms.
EXHIBIT BB-3
4. The Purchase Agreement has been duly authorized, executed and delivered
by or on behalf of the Trustee on behalf of the Trust.
5. The Attorney-in-Fact has been duly authorized by the Trustee on behalf
of the Trust to deliver the Trustee's Securities on behalf of the
Trustee on behalf of the Trust in accordance with the terms of the
Purchase Agreement.
6. The execution, delivery and performance of the Documents and the sale
and delivery of the Trustee's Securities and the consummation of the
transactions contemplated in the Purchase Agreement and compliance by
the Trustee with its obligations under the Purchase Agreement have been
duly authorized by all necessary action on the part of the Trustee and
(A) to our knowledge, do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default under or result in the creation or
imposition of any tax, lien, charge or encumbrance upon the Trustee's
Securities or any property or assets of the Trust pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other instrument or agreement to which the
Trustee is a party or by which it may be bound, or to which any of the
property or assets of the Trust may be subject, nor (B) will such
action result in any violation of the provisions of (i) the constating
documents of the Trust, (ii) any law or administrative regulation
applicable to the Trust, or (iii) to our knowledge, any judgment or
order of any governmental agency or body or any administrative or court
decree having jurisdiction over the Trustee or any of the Trust
property.
7. [Other than the delivery of the share certificates identified on
Schedule A together with a stock power duly endorsed in blank and
payment of the purchase price by the Underwriters, no other action is
required under the laws of Ontario or the federal laws of Canada to
transfer all of the rights of the Trustee, on behalf of the Trust, in
respect of those shares to the Underwriters free of the claims of third
parties, provided that the Underwriters are acting in good faith and
have no notice of any adverse claim affecting those shares and there
are no restrictions on transfer noted on those share certificates.]
Our opinions above are subject to the following
qualifications:
(i) The enforceability of the Custody Agreement and the Power of Attorney
is subject to bankruptcy, insolvency, reorganization, arrangement and
other similar laws of general application affecting the enforcement of
creditors' rights generally.
(ii) The enforceability of the Custody Agreement and the Power of Attorney
are subject to general equitable principles, including the fact that
the availability of equitable remedies, such as specific performance
and injunctive relief, is in the discretion of a court of competent
jurisdiction.
(iii) A judgment of an Ontario court may only be awarded in Canadian
currency.
(iv) Provisions which purport to sever from the Custody Agreement or the
Power of Attorney any provision which is prohibited or unenforceable
under applicable law without
EXHIBIT BB-4
affecting the enforceability or validity of the remainder of the
Custody Agreement or the Power of Attorney may be enforced only in the
discretion of a court.
(v) We express no opinions as to exculpations, rights to indemnity and
contribution, or as to waivers of rights where inconsistent with
applicable law or public policy from time to time in effect.
(vi) We express no opinion regarding title to the Trustee's Securities or to
any other property.
(vii) We express no opinion as to any securities, tax, competition or
anti-trust laws or laws applicable to foreign investment in Canada.
Yours very truly,
TORYS LLP
EXHIBIT BB-5
SCHEDULE A
TO OPINION LETTER
CARMEL TRUST
Share Certificate
Share certificate number [ ] for 497,282 shares of CSK Auto [ ] dated [ ]
EXHIBIT BB-6
EXHIBIT C
Form of lock-up pursuant to Section 5(k)
June ___, 2002
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
UBS WARBURG LLC CREDIT
SUISSE FIRST BOSTON CORPORATION
XXXXXXX, SACHS & CO.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Proposed Public Offering by CSK Auto Corporation
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of CSK
Auto Corporation, a Delaware corporation (the "Company"), understands that
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx"), UBS Warburg LLC, Credit Suisse First Boston Corporation and
Xxxxxxx, Sachs & Co. propose to enter into a Purchase Agreement (the "Purchase
Agreement") with the Company and the Selling Shareholders providing for the
public offering of shares (the "Securities") of the Company's common stock, par
value $.01 per share (the "Common Stock"). In recognition of the benefit that
such an offering will confer upon the undersigned as a stockholder [and an
officer and/or director] of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the Purchase Agreement
that, during a period of 90 days from the date of the Purchase Agreement, the
undersigned will not, without the prior written consent of UBS Warburg LLC,
directly or indirectly, (i) 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 for the sale of, or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise.
Very truly yours,
Signature:
----------------------------
Print Name:
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EXHIBIT C-1
