1
Exhibit 1.1
6,400,000 Shares
DOMINICK'S SUPERMARKETS, INC.
Common Stock
UNDERWRITING AGREEMENT
October , 1996
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
As representatives of the
several underwriters
named in Schedule I hereto
(the "Representatives")
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Dominick's Supermarkets, Inc., a Delaware corporation (the
"Company"), and the stockholders of the Company named in Schedule II hereto,
(collectively, the "Selling Stockholders"), severally propose to sell an
aggregate of 6,400,000 shares of Common Stock, par value $.01 per share, of the
Company (the "Firm Shares"), to the several underwriters named in Schedule I
hereto (the "Underwriters"). The Firm Shares consist of 5,900,000 shares to be
issued and sold by the Company and 500,000 outstanding shares to be sold by the
Selling Stockholders in the respective amounts set forth in Schedule II under
the caption "Firm Shares." The Selling Stockholders also severally propose to
issue and sell to the several Underwriters not more than 960,000 additional
shares of Common Stock, par value $.01 per share, of the Company (the
"Additional Shares") up to the respective amounts set forth in Schedule II
under the caption "Additional Shares", if requested by the Underwriters as
provided in Section 2 hereof. The Firm Shares and the Additional Shares are
herein collectively called the "Shares." The
2
-2-
shares of Common Stock of the Company to be outstanding after giving effect to
the sales contemplated hereby are hereinafter referred to as the "Common
Stock." The Company and the Selling Stockholders are hereinafter collectively
called the "Sellers."
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively called the "Act"), a registration statement on Form S-1 (File No.
333-11177) including a prospectus relating to the Shares, which may be amended.
The registration statement as amended at the time when it becomes effective,
including a registration statement (if any) filed pursuant to Rule 462(b) under
the Act increasing the size of the offering registered under the Act and
information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Act, is hereinafter
referred to as the "Registration Statement"; and the prospectus in the form
first used to confirm sales of Shares is hereinafter referred as the
"Prospectus."
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, (i) the Company agrees to issue and sell 5,900,000 Firm
Shares, (ii) each Selling Stockholder agrees, severally and not jointly, to
sell the number of Firm Shares set forth opposite such Selling Stockholder's
name in Schedule II hereto and (iii) each Underwriter agrees, severally and not
jointly, to purchase from each Seller at a price per share of $[ ] (the
"Purchase Price") the number of Firm Shares (subject to such adjustments to
eliminate fractional shares as the Representatives may determine) which bears
the same proportion to the total number of Firm Shares to be sold by such
Seller as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in
this Agreement, and subject to its terms and conditions, (i) each Selling
Stockholder agrees, severally and not jointly, to sell up to the number of
Additional Shares set forth opposite such Selling Stockholder's name in
Schedule II hereto and (ii) the Underwriters shall have the right to purchase,
severally and not jointly, up to an aggregate of 960,000 Additional Shares from
the Selling Stockholders at the Purchase
3
-3-
Price. Additional Shares may be purchased solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. The
Underwriters may exercise their right to purchase Additional Shares in whole or
in part from time to time by giving written notice thereof to the Company
within 30 days after the date of this Agreement. The Representatives shall
give any such notice on behalf of the Underwriters and such notice shall
specify the aggregate number of Additional Shares to be purchased pursuant to
such exercise and the date for payment and delivery thereof. The date
specified in any such notice shall be a business day (i) no earlier than the
Closing Date (as hereinafter defined), (ii) no later than ten business days
after such notice has been given and (iii) no earlier than two business days
after such notice has been given. If any Additional Shares are to be
purchased, (i) each Underwriter, severally and not jointly, agrees to purchase
from each Selling Stockholder the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the Representatives may
determine) which bears the same proportion to the total number of Additional
Shares to be sold by such Selling Stockholder as the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I bears to the total
number of Firm Shares and (ii) each Selling Stockholder agrees, severally and
not jointly, to sell the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the Representatives may
determine) which bears the same proportion to the total number of Additional
Shares being purchased by the Underwriters as the number of Additional Shares
set forth opposite the name of such Selling Stockholder in Schedule II hereto
bears to the total number of Additional Shares which the Underwriters have the
right to purchase pursuant to this Section 2.
The Sellers hereby agree, severally and not jointly, and the
Company shall, concurrently with the execution of this Agreement, deliver an
agreement executed by (i) each of the directors and officers of the Company and
(ii) each stockholder listed on Annex I hereto, pursuant to which each such
person agrees, not to, directly or indirectly, offer, sell, contract to sell,
grant any option to purchase, or otherwise dispose of any common stock of the
Company or any securities convertible into or exercisable or exchangeable for
such common stock or in any other manner transfer all or a portion of the
economic consequences associated with the ownership of any such common stock,
except to the Underwriters pursuant to this Agreement, for a period of 180 days
after the date of the Prospectus without the prior written consent of
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
4
-4-
Securities Corporation ("DLJ"). Notwithstanding the foregoing, during such
period (i) the Company may grant stock options pursuant to the Company's
existing stock option plan, (ii) the Company may issue shares of its common
stock upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and (iii) each Selling Stockholder may transfer
shares of Common Stock to an affiliate of such Selling Stockholder or an
immediate family member or a trust for the sole benefit of the foregoing,
provided that any such transferee agrees to be bound by the restrictions set
forth in this paragraph.
The Company hereby confirms its engagement of DLJ as, and DLJ
hereby confirms its agreement with the Company to render services as, a
"qualified independent underwriter," within the meaning of Section (b)(15) of
Rule 2720 of the Conduct Rules of the National Association of Securities
Dealers, Inc. (the "NASD") with respect to the offering and sale of the Shares.
DLJ, solely in its capacity as qualified independent underwriter and not
otherwise, is referred to herein as the "QIU." As compensation for the
services of the QIU hereunder, the Company agrees to pay the QIU $5,000 on the
Closing Date. The price at which the Shares will be sold to the public shall
not be higher than the maximum price recommended by DLJ acting as QIU.
3. Terms of Public Offering. The Sellers have been advised by
the Representatives that the Underwriters propose (i) to make a public offering
of their respective portions of the Shares as soon after the effective date of
the Registration Statement as in the judgment of the Representatives is
advisable and (ii) initially to offer the Shares upon the terms set forth in
the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and
payment for the Firm Shares shall be made at 9:00 A.M., New York City time, on
[ ], 1996 (the "Closing Date") at the offices of Xxxxxx Xxxxxx &
Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Closing Date and the
location of delivery of and the form of payment for the Firm Shares may be
varied by agreement between the Representatives and the Sellers.
Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at such place as the
Representatives shall designate at 9:00 A.M., New York City time, on the date
specified in the
5
-5-
applicable exercise notice given by the Representatives pursuant to Section 2
(an "Option Closing Date"). Any such Option Closing Date and the location of
delivery of and the form of payment for such Additional Shares may be varied by
agreement between the Representatives and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as the Representatives shall request in writing
not later than two full business days prior to the Closing Date or an Option
Closing Date, as the case may be. Such certificates shall be made available to
the Representatives for inspection not later than 9:30 A.M., New York City
time, on the business day next preceding the Closing Date or an Option Closing
Date, as the case may be. Certificates in definitive form evidencing the
Shares shall be delivered to the Representatives on the Closing Date or an
Option Closing Date, as the case may be, with any transfer taxes thereon duly
paid by the respective Sellers, for the respective accounts of the several
Underwriters, against payment of the Purchase Price therefor by wire transfer
or certified or official bank checks payable in federal funds to the order of
the applicable Sellers.
5. Agreements of the Company. The Company agrees with the
Representatives:
(a) If the Registration Statement has not been declared effective
prior to the execution of this Agreement, to use its best efforts to
cause the Registration Statement to become effective at the earliest
possible time.
(b) To advise the Representatives and the Selling Stockholders
promptly and, if requested by the Representatives, to confirm such advice
in writing, (i) when the Registration Statement has become effective and
when any post-effective amendment to it becomes effective, (ii) of any
request by the Commission, before or after the Registration Statement has
become effective, for amendments to the Registration Statement or
amendments or supplements to the Prospectus or any preliminary or
supplemental prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of the suspension of qualification of
the Shares for offering or sale in any jurisdiction, or the initiation of
any proceeding for such purposes, and (iv) of the happening of any event
6
-6-
during the period referred to in paragraph (e) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus or any supplemental prospectus untrue or which requires the
making of any additions to or changes in the Registration Statement or
the Prospectus or any supplemental prospectus in order to make the
statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain the
withdrawal or lifting of such order at the earliest possible time.
(c) To furnish to the Representatives, without charge, 5 signed
copies of the Registration Statement as first filed with the Commission
and of each amendment to it, including all exhibits, and to furnish to
the Representatives, each Underwriter designated by the Representatives
and each Selling Stockholder such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as the Representatives or the Selling Stockholders may
reasonably request.
(d) Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
to make any amendment or supplement to the Prospectus or any preliminary
or supplemental prospectus of which the Representatives shall not
previously have been advised or to which the Representatives shall
reasonably object; and to prepare and file with the Commission, promptly
upon the reasonable request of the Representatives, any amendment to the
Registration Statement or supplement to the Prospectus which may be
necessary or advisable in connection with the distribution of the Shares
by the Underwriters, and to use its best efforts to cause the same to
become promptly effective.
(e) Promptly after the Registration Statement becomes effective,
and from time to time thereafter for such period as in the opinion of
counsel for the Underwriters a prospectus is required by law to be
delivered in connection with sales by an Underwriter or a dealer, to
furnish to each Underwriter and dealer as many copies of the Prospectus
(and of any amendment or supplement to the Prospectus) as such
Underwriter or dealer may reasonably request.
7
-7-
(f) If during the period specified in paragraph (e) any event
shall occur as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus
(or any amendment or supplement thereto) in order to make the statements
therein, in the light of the circumstances when the Prospectus (or any
such amendment or supplement thereto) is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus
(or any amendment or supplement thereto) to comply with any law,
forthwith to prepare and file with the Commission an appropriate
amendment or supplement to the Prospectus (or any such amendment or
supplement thereto) so that the statements in the Prospectus (or any such
amendment or supplement thereto), as so amended or supplemented, will not
in the light of the circumstances when it is so delivered, be misleading,
or so that the Prospectus (or any such amendment or supplement thereto)
will comply with law, and to furnish to each Underwriter and to such
dealers as the Representatives shall specify, such number of copies
thereof as such Underwriter or dealers may reasonably request.
(g) Prior to any public offering of the Shares, to cooperate with
the Representatives and counsel for the Underwriters in connection with
the registration or qualification of the Shares for offer and sale by the
several Underwriters and by dealers under the state securities or Blue
Sky laws of such jurisdictions as the Representatives may request, to
continue such qualification in effect so long as required for
distribution of the Shares and to file such consents to service of
process or other documents as may be necessary in order to effect such
registration or qualification; provided, however, that the Company shall
not be required to register or qualify the Shares in any jurisdiction
where such registration or qualification would require the Company to
qualify as a foreign corporation or to execute a general consent to
service of process in such jurisdiction.
(h) To mail and make generally available to its stockholders as
soon as reasonably practicable an earnings statement covering a period of
at least twelve months after the effective date of the Registration
Statement (but in no event commencing later than 90 days after such date)
which shall satisfy the provisions of Section 11(a)
8
-8-
of the Act, and to advise the Representatives in writing when such
statement has been so made available.
(i) During the period of five years after the date of this
Agreement, (i) to mail as soon as reasonably practicable after the end of
each fiscal year to the record holders of its Common Stock a financial
report of the Company and its subsidiaries on a consolidated basis (and a
similar financial report of all unconsolidated subsidiaries, if any), all
such financial reports to include a consolidated balance sheet, a
consolidated statement of operations, a consolidated statement of cash
flows and a consolidated statement of stockholders' equity as of the end
of and for such fiscal year, together with comparable information as of
the end of and for the preceding year, certified by independent certified
public accountants, and (ii) to make generally available as soon as
practicable after the end of each quarterly period (except for the last
quarterly period of each fiscal year) to such holders, a consolidated
balance sheet, a consolidated statement of operations and a consolidated
statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such
period, and for the period from the beginning of such year to the close
of such quarterly period, together with comparable information for the
corresponding periods of the preceding year.
(j) During the period of five years after the date of this
Agreement, to furnish to the Representatives as soon as available a copy
of each report or other publicly available information of the Company
mailed to the holders of Common Stock or filed with the Commission and
such other publicly available information concerning the Company and its
subsidiaries as the Representatives may reasonably request.
(k) To pay all costs, expenses, fees and taxes incident to (i)
the preparation, printing, filing and distribution under the Act of the
Registration Statement (including financial statements and exhibits),
each preliminary prospectus and all amendments and supplements to any of
them prior to or during the period specified in paragraph (e), (ii) the
printing and delivery of the Prospectus and all amendments or supplements
to it during the period specified in paragraph (e), (iii) the printing
and delivery of this Agreement, the Preliminary and
9
-9-
Supplemental Blue Sky Memoranda and all other agreements, memoranda,
correspondence and other documents printed and delivered in connection
with the offering of the Shares (including in each case any disbursements
of counsel for the Underwriters relating to such printing and delivery),
(iv) the registration or qualification of the Shares for offer and sale
under the securities or Blue Sky laws of the several states (including in
each case the fees and disbursements of counsel for the Underwriters
relating to such registration or qualification and memoranda relating
thereto), (v) filings and clearance with the NASD in connection with the
offering of the Shares, (vi) the listing of the Shares on the New York
Stock Exchange (the "NYSE"), (vii) furnishing such copies of the
Registration Statement, the Prospectus and all amendments and supplements
thereto as may be requested for use in connection with the offering or
sale of the Shares by the Underwriters or by dealers to whom Shares may
be sold, (viii) the performance by the Sellers of their other obligations
under this Agreement, and (ix) the paying of a fee of $5,000 to the QIU.
(l) To use its best efforts to maintain the listing of the Common
Stock on the NYSE for a period of five years after the effective date of
the Registration Statement.
(m) To use its best efforts to do and perform all things required
or necessary to be done and performed under this Agreement by the Company
prior to the Closing Date or any Option Closing Date, as the case may be,
and to satisfy all conditions precedent to the delivery of the Shares.
(n) The Company will, for so long as any of the Common Stock is
outstanding and if, in the reasonable judgment of any Underwriter, such
Underwriter or any of its affiliates (as defined in the rules and
regulations under the Act) is required to deliver a prospectus in
connection with sales of Common Stock (i) periodically amend the
Registration Statement so that the information contained in the
Registration Statement complies with the requirements of Section 10(a) of
the Act, (ii) amend the Registration Statement or supplement the
Prospectus when necessary to reflect any material changes in the
information provided therein, (iii) provide such Underwriter with copies
of each amendment or supplement filed and such other documents, including
opinions of counsel and "comfort"
10
-10-
letters, as such Underwriter may reasonably request and (iv) agree to
indemnify such Underwriter and if applicable, contribute to any amount
paid or payable by such Underwriter in a manner substantially identical
to that specified in Section 8 hereof (with appropriate modifications).
6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become, or prior to the
Closing Date will become, effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each part of the Registration Statement, when such part
became or becomes effective, did not or will not contain and each such
part, as amended or supplemented, if applicable, did not or will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Act and (iii) the
Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph (b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating
to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein.
(c) The Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as it is currently being conducted
and to own, lease and operate its properties, and each is duly qualified
and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
11
-11-
ownership or leasing of property requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(d) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable, and except as otherwise described in
the Registration Statement and Prospectus, are owned by the Company free
and clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature.
(e) All the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights,
except as set forth in the Stockholders Agreement of Dominick's
Supermarkets, Inc., dated as of March 22, 1995, by and among the parties
named therein (the "Stockholders Agreement"); and the Shares to be issued
and sold by the Company hereunder have been duly authorized and, when
issued and delivered to the Underwriters against payment therefor as
provided by this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights except as set forth in the Stockholders
Agreement.
(f) The authorized capital stock of the Company, including the
Common Stock, conforms as to legal matters to the description thereof
contained in the Prospectus.
(g) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
other agreement, indenture or instrument material to the conduct of the
business of the Company and its subsidiaries, taken as a whole, to which
the Company or any of its subsidiaries is a party or by which it or any
of its subsidiaries or their respective property is bound.
(h) The Company has all requisite corporate power and authority
to enter into this Agreement and to consummate the transactions
contemplated hereby, and the Company has all requisite corporate power
and authority to issue
12
-12-
and deliver the Shares to be issued and sold by it hereunder. This
Agreement has been duly authorized, executed and delivered by the
Company.
(i) The execution, delivery and performance of this Agreement,
compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not require any
consent, approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body (except as such
may be required under the securities or Blue Sky laws of the various
states) and will not conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws of the
Company or any of its subsidiaries or any agreement, indenture or other
instrument to which it or any of its subsidiaries is a party or by which
it or any of its subsidiaries or their respective property is bound, or
violate or conflict with any laws, administrative regulations or rulings
or court decrees applicable to the Company, any of its subsidiaries or
their respective property.
(j) Except as otherwise set forth in the Prospectus, there are no
material legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any of their respective
property is the subject, and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated. No contract or document
of a character required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement
is not so described or filed as required.
(k) Except as otherwise set forth in the Prospectus, neither the
Company nor any of its subsidiaries has violated any foreign, federal,
state or local law or regulation relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), nor any
federal or state law relating to discrimination in the hiring, promotion
or pay of employees nor any applicable federal or state wages and hours
laws, nor any provisions of the Employee Retirement Income Security Act
or the rules and regulations promulgated thereunder, which in each case
might result in any material adverse change in the business, prospects,
financial condition or
13
-13-
results of operation of the Company and its subsidiaries, taken as a
whole.
(l) The Company and each of its subsidiaries owns or possesses
adequate licenses or other rights to use all patents, trademarks, service
marks, trade names, copyrights and know-how necessary to conduct the
businesses now or proposed to be operated by it as described in the
Prospectus, and none of the Company or the subsidiaries has received any
notice of infringement of or conflict with (or knows of any such
infringement of or conflict with) asserted rights of others with respect
to any patents, trademarks, service marks, trade names, copyrights or
know-how which, if such assertion of infringement or conflict were
sustained, could have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(m) Except as otherwise set forth in the Prospectus or such as
are not material to the business, prospects, financial condition or
results of operation of the Company and its subsidiaries, taken as a
whole, the Company and each of its subsidiaries has good and marketable
title, free and clear of all liens, claims, encumbrances and restrictions
except liens for taxes not yet due and payable, to all property and
assets described in the Registration Statement as being owned by it. All
leases to which the Company or any of its subsidiaries is a party are
valid and binding and no default has occurred or is continuing
thereunder, which might result in any material adverse change in the
business, prospects, financial condition or results of operation of the
Company and its subsidiaries taken as a whole, and the Company and its
subsidiaries enjoy peaceful and undisturbed possession under all such
leases to which any of them is a party as lessee with such exceptions as
do not materially interfere with the use made by the Company or such
subsidiary.
(n) The Company and each of its subsidiaries maintains reasonably
adequate insurance for the business in which it is engaged.
(o) Ernst & Young LLP are independent public accountants with
respect to the Company as required by the Act.
(p) The financial statements, together with related schedules and
notes forming part of the Registration
14
-14-
Statement and the Prospectus (and any amendment or supplement thereto),
present fairly the consolidated financial position, results of operations
and changes in cash flows of the Company and its subsidiaries on the
basis stated in the Registration Statement at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; the other financial and
statistical information and data set forth in the Registration Statement
and the Prospectus (and any amendment or supplement thereto) is, in all
material respects, accurately presented and prepared on a basis
consistent with such financial statements and the books and records of
the Company; and the pro forma financial statements and the related notes
thereto included in the Registration Statement and the Prospectus have
been prepared in accordance with the applicable requirements of the Act
and on the basis described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred
to therein.
(q) The statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from
sources which the Company believes to be reliable and accurate in all
material respects.
(r) Except as otherwise set forth in the Prospectus or except as
would not, singly or in the aggregate, have a material adverse effect on
the Company and its subsidiaries, taken as a whole, the Company and each
of its subsidiaries has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits"),
including, without limitation, under any applicable Environmental Laws,
as are necessary to own, lease and operate its respective properties and
to conduct its business in the manner described in the Prospectus,
subject to such qualifications as may be set forth in the Prospectus; the
Company and each of its subsidiaries has fulfilled and performed all of
its material obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit, subject in
each case to such
15
-15-
qualification as may be set forth in the Prospectus; and, except as
described in the Prospectus, such permits contain no restrictions that
are materially burdensome to the Company or any of its subsidiaries.
(s) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(t) Except as otherwise disclosed in the Prospectus, no holder of
any security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company.
(u) The Company has complied with all applicable provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(v) The Company has filed a registration statement pursuant to
Section 12(b) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), to register the Common Stock, has filed an application
to list the Shares on the NYSE, and has received notification that the
listing has been approved, subject to notice of issuance.
(w) Except as otherwise disclosed in the Prospectus, there are no
outstanding subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale or liens related to or entitling any
person to purchase or otherwise to acquire any shares of the capital
stock of, or other ownership interest in, the Company or any subsidiary
thereof.
(x) Except as otherwise disclosed in the Prospectus, there is (i)
no unfair labor practice complaint pending against the Company or any of
its subsidiaries or, to the best knowledge of the Company, threatened
against any of them, before the National Labor Relations Board or any
state or local labor relations board, and no grievance or arbitration
proceeding arising out of or under any collective bargaining agreement is
pending against the Company or any of its subsidiaries or, to the best
knowledge of the Company, threatened against any of them, and (ii) no
strike, labor dispute, slowdown or stoppage pending against the Company
or any of its subsidiaries or, to the best knowledge of the Company,
threatened against it or any of its subsidiaries except for such actions
specified
16
-16-
in clause (i) or (ii) above, which, singly or in the aggregate could not
reasonably be expected to have a material adverse effect on the Company
and its subsidiaries, taken as a whole. There has been no material
adverse development in the negotiations with the unions representing the
Dominick's retail clerks and Omni meatcutters.
(y) The Company and each of its subsidiaries 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 to assets 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.
(z). All material tax returns required to be filed by the Company
and each of its subsidiaries in any jurisdiction have been filed, other
than those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees
and other charges due pursuant to such returns or pursuant to any
assessment received by the Company or any of its subsidiaries have been
paid, other than those being contested in good faith and for which
adequate reserves have been provided.
(aa) The offering of the Shares by the Underwriters pursuant to
this Agreement is a "Qualified IPO" as defined in the Stockholders
Agreement.
7. Representations and Warranties of the Selling Stockholders.
Each Selling Stockholder severally represents and warrants to each Underwriter
that:
(a) Such Selling Stockholder is the lawful owner of the Shares to
be sold by such Selling Stockholder pursuant to this Agreement and has,
and on the Closing Date (and Option Closing Date, if applicable) will
have, good and clear title to such Shares.
17
-17-
(b) Upon delivery of and payment for the Shares to be sold by
such Selling Stockholder pursuant to this Agreement, good and clear title
to such Shares will pass to the Underwriters, free of all restrictions on
transfer, liens, encumbrances, security interests and claims whatsoever.
(c) Such Selling Stockholder has, and on the Closing Date (and on
any Option Closing Date, if applicable) will have, full legal right,
power and authority to enter into this Agreement and the Custody
Agreement between the Selling Stockholders and First Chicago Trust
Company of New York, as Custodian (the "Custody Agreement") and to sell,
assign, transfer and deliver such Shares in the manner provided herein
and therein, and this Agreement and the Custody Agreement have been duly
authorized by all necessary corporate or other action, executed and
delivered by such Selling Stockholder and the Custody Agreement is a
valid and binding agreement of such Selling Stockholder enforceable in
accordance with its terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity and the discretion
of the court before which any proceeding therefor may be brought.
(d) The power of attorney signed by such Selling Stockholder
appointing Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxx, or either one of them,
as its attorney-in-fact to the extent set forth therein with regard to
the transactions contemplated hereby and thereby and by the Registration
Statement and the Custody Agreement has been duly authorized, executed
and delivered by or on behalf of such Selling Stockholder and is a valid
and binding instrument of such Selling Stockholder enforceable in
accordance with its terms.
(e) Such Selling Stockholder has not taken, and will not take,
directly or indirectly, any action designed to, 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 Shares pursuant to the distribution contemplated by this Agreement,
and other than as permitted by the Act, such Selling Stockholder has not
distributed and will not
18
-18-
distribute any prospectus or other offering material in connection with
the offering and sale of the Shares.
(f) The execution, delivery and performance of this Agreement and
the Custody Agreement by such Selling Stockholder, compliance by such
Selling Stockholder with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will not
require any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body (except
as such may be required under the Act, state securities laws or Blue Sky
laws) and will not conflict with or constitute a breach of any of the
terms or provisions of, or a default under, organizational documents of
such Selling Stockholder or any agreement, indenture or other instrument
to which such Selling Stockholder is a party or by which such Selling
Stockholder or property of such Selling Stockholder is bound, or violate
or conflict with any laws, administrative regulation or ruling or court
decree applicable to such Selling Stockholder or property of such Selling
Stockholder, except in each such case as would not have a material
adverse effect on such Selling Stockholder's abilities to perform its
obligations hereunder.
(g) Such parts of the Registration Statement under the caption
"Principal and Selling Stockholders" which specifically relate to such
Selling Stockholder do not, and will not on the Closing Date (and any
Option Closing Date, if applicable), 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 light of
circumstances under which they were made, not misleading.
(h) At any time during the period described in paragraph 5(e)
hereof, if there is any change in the information referred to in
paragraph 7(g) above which relate to such Selling Stockholder, such
Selling Stockholder will immediately notify the Representatives of such
change.
8. Indemnification. a. (i) 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 Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and
19
-19-
judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or judgments are caused by
any such untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriters furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
expressly for use therein; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages and liabilities and judgments purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended and supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or judgment, unless such failure to
deliver the Prospectus (as so amended and supplemented) was a result of
noncompliance by the Company of Section 5(e) hereof;
(ii) Each Selling Stockholder, 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 Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriters furnished in
writing to the Company by or on behalf of
20
-20-
any Underwriter through the Representatives expressly for use therein;
provided, however, that each Selling Stockholder shall be liable only with
reference to information relating to such Selling Stockholder furnished to the
Company in writing by or on behalf of such Selling Stockholder expressly for
use in the Registration Statement, any preliminary prospectus, the Prospectus
or any amendment or supplement thereto. Notwithstanding the foregoing, the
aggregate liability of any Selling Stockholder pursuant to the provisions of
this paragraph shall be limited to an amount equal to the total net proceeds
(before deducting expenses but after deducting underwriting discounts and
commissions) received by such Selling Stockholder from the sale of such Selling
Stockholder's Shares hereunder; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages and liabilities and judgments purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended and supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or judgment, unless such failure to
deliver the Prospectus (as so amended and supplemented) was a result of
noncompliance by the Company of Section 5(e) hereof.
(b) In case any action shall be brought against any Underwriter
or any person controlling such Underwriter, based upon any preliminary
prospectus, the Registration Statement or the Prospectus or any amendment or
supplement thereto and with respect to which indemnity may be sought against
the Company and the Selling Stockholders, such Underwriter shall promptly
notify the Company and the Selling Stockholders in writing and the Company
shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees and
expenses. Any Underwriter or any such controlling person shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Underwriter or such controlling person unless (i) the employment of such
counsel has been specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense and employ counsel reasonably
satisfactory to such indemnified party or (iii) the
21
-21-
named parties to any such action (including any impleaded parties) include both
such Underwriter or such controlling person and the Company or any Selling
Stockholder, as the case may be, and such Underwriter or such controlling
person shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to those
available to the Company or the Selling Stockholders, as the case may be, (in
which case the Company shall not have the right to assume the defense of such
action on behalf of such Underwriter or such controlling person, it being
understood, however, that the Company and the Selling Stockholders shall not,
in connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all such
Underwriters and controlling persons, which firm shall be designated in writing
by DLJ and that all such fees and expenses shall be reimbursed as they are
incurred). A Seller shall not be liable for any settlement of any such action
effected without the written consent of such Seller but if settled with the
written consent of such Seller, such Seller agrees to indemnify and hold
harmless any Underwriter and any such controlling person from and against any
loss or liability by reason of such settlement. Notwithstanding the
immediately preceding sentence, if in any case where the fees and expenses of
counsel are at the expense of the indemnifying party and an indemnified party
shall have requested the indemnifying party to reimburse the indemnified party
for such fees and expenses of counsel as incurred, such indemnifying party
agrees that it shall be liable for any settlement of any action effected
without its written consent if (i) such settlement is entered into more than 30
business days after the receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall have failed to reimburse the
indemnified party in accordance with such request for reimbursement prior to
the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such proceeding and (ii) does not include any statement as to an
admission of fault, culpability or failure to act by or on behalf of such
indemnified party.
22
-22-
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
Selling Stockholder and each person, if any, controlling such Selling
Stockholder within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Sellers to
each Underwriter, but only with reference to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter through
the Representatives expressly for use in the Registration Statement, the
Prospectus or any preliminary prospectus. In case any action shall be brought
against the Company, any of its directors, any such officer or any person
controlling the Company or any Selling Stockholder or any person controlling
such Selling Stockholder based on the Registration Statement, the Prospectus or
any preliminary prospectus and in respect of which indemnity may be sought
against any Underwriter, the Underwriter shall have the rights and duties given
to the Sellers (except that if any Seller shall have assumed the defense
thereof such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof but the fees
and expenses of such counsel shall be at the expense of such Underwriter), and
the Company, its directors, any such officers and any person controlling the
Company and the Selling Stockholders and any person controlling such Selling
Stockholders shall have the rights and duties given to the Underwriter, by
Section 8(b) hereof.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Sellers on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Sellers and
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The
23
-23-
relative benefits received by the Sellers and the Underwriters shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses but after deducting underwriting discounts and
commissions) received by the Sellers, and the total underwriting discounts and
commissions received by the Underwriters, bear to the total price to the public
of the Shares, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Sellers and the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Sellers and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 8(d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, (i) no
Selling Stockholder shall be required to contribute any amount in excess of the
amount of total net proceeds received by such Selling Stockholders from the
sale of Shares by such Selling Stockholder hereunder and (ii) no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective
number of Shares purchased by each of the Underwriters hereunder and not joint.
The Selling Stockholders' respective obligations to
24
-24-
contribute pursuant to this Section 8(d) are several in proportion to the total
net proceeds they have received from the sale of Shares hereunder and not
joint.
9. Indemnification of Qualified Independent Underwriter.
(a) The Company and each Selling Stockholder, severally and not
jointly, agree to indemnify and hold harmless the QIU and each person, if any,
who controls the QIU within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments relating to, based upon or arising out of (i) any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however,
that each Selling Stockholder shall be liable only with reference to
information relating to such Selling Stockholder furnished to the Company in
writing by or on behalf of such Selling Stockholder expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto; and provided, further, that neither the
Company nor the Selling Stockholders shall be liable with reference to
information relating to the QIU furnished by or on behalf of the QIU expressly
for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto; or (ii) the QIU's
activities as a QIU under its engagement pursuant to Section 2 hereof;
provided, however, that to the extent that any such loss, claim, damage,
liability or judgment is found in a final judgment by a court of competent
jurisdiction, not subject to further appeal, to have resulted from the willful
misconduct or gross negligence of the QIU, neither the Company nor the Selling
Stockholders shall be liable to that extent. Notwithstanding the foregoing,
the aggregate liability of any Selling Stockholder pursuant to the provisions
of this paragraph shall be limited to an amount equal to the total net proceeds
(before deducting expenses but after deducting underwriting discounts and
commissions) received by such Selling Stockholder from the sale of such Selling
Stockholder's Shares hereunder.
(b) In case any action shall be brought against the QIU or any
person controlling the QIU, based upon (i) any
25
-25-
preliminary prospectus, the Registration Statement or the Prospectus or any
amendment or supplement thereto or (ii) the QIU's activities as a QIU under its
engagement pursuant to Section 2 hereof, and with respect to which indemnity
may be sought against the Company and the Selling Stockholders, the QIU shall
promptly notify the Company and the Selling Stockholders in writing and the
Company shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees and
expenses. The QIU or any such controlling persons shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the QIU or such controlling person unless (i) the employment of such counsel
shall have been specifically authorized in writing by the Company, (ii) the
Company shall have failed to assume the defense and employ counsel or (iii) the
named parties to any such action (including any impleaded parties) include both
the QIU or such controlling person and the Company or any Selling Stockholder,
as the case may be, and the QIU or such controlling person shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the Company
or any Selling Stockholder, as the case may be, (in which case the Company
shall not have the right to assume the defense of such action on behalf of the
QIU or such controlling persons, it being understood, however, that the Company
and the Selling Stockholders shall not, in connection with any one such action
or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for the QIU and the controlling persons,
which firm shall be designated in writing by the QIU and that all such fees and
expenses shall be reimbursed as they are incurred). The Company and the
Selling Stockholder shall not be liable for any settlement of any such action
effected without the written consent of the Company and the Selling
Stockholders but if settled with the written consent of the Company and the
Selling Stockholders, the Company and the Selling Stockholders agree to
indemnify and hold harmless the QIU and any such controlling persons from and
against any loss or liability by reason of such settlement. Notwithstanding
the immediately preceding sentence, if in any case where the fees and expenses
of counsel are at the expense of the indemnifying party and an indemnified
party shall have requested the indemnifying party to reimburse the indemnified
party for such fees and expenses of counsel as
26
-26-
incurred, such indemnifying party agrees that it shall be liable for any
settlement of any action effected without its written consent if (i) such
settlement is entered into more than 30 business days after the receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall have failed to reimburse the indemnified party in accordance with such
request for reimbursement prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(c) The QIU agrees to indemnify and hold harmless the Company and
the Selling Stockholders and directors of the Company, the officers of the
Company who sign the Registration Statement and each person, if any, who
controls the Company or the Selling Stockholders within the meaning of Section
15 of the Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company and the Selling Stockholders, but only
with reference to information relating to the QIU furnished by or on behalf of
the QIU expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto. In the
case any action shall be brought against the Company, any of its directors, any
such officers or any person controlling the Company or any Selling Stockholder
or any person controlling such Selling Stockholder based on the Registration
Statement, the Prospectus or any preliminary prospectus and in respect of which
indemnity may be sought against the QIU, the QIU shall have the rights and
duties given to the Company and the Selling Stockholders (except that if the
Company and the Selling Stockholders have assumed the defense thereof the QIU
shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of the QIU), and the Company, its directors, any such
officers and any person controlling the Company and the Selling Stockholders
and any person controlling such Selling Stockholders shall have the rights and
duties given to the QIU, by Section 9(b).
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to
27
-27-
therein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities and judgments (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Selling Stockholders on the one hand and the QIU on the
other hand from the offering of the Shares or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, the Selling Stockholders,
the Underwriters and the QIU in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders and the QIU shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses but after deducting underwriting discounts and
commissions) received by the Company and the Selling Stockholders, as set forth
in the cover page of the Prospectus, and the total fee received by the QIU, as
set forth in the "Underwriting" section of the Prospectus, bear to the total
price to the public of the Shares. The relative fault of the Company and the
Selling Stockholders and the QIU shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
Company, the Selling Stockholders or the QIU and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission and whether the QIU's recommendations, advice or services
as QIU pursuant to Section 2 hereof involved any willful misconduct or gross
negligence on the part of the QIU.
The Company and the Selling Stockholders and the QIU agree that it
would not be just and equitable if contribution pursuant to this Section 9(d)
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim.
28
-28-
Notwithstanding the provisions of this Section 9, (i) no Selling Stockholder
shall be required to contribute any amount in excess of the amount of total net
proceeds received by such Selling Stockholder from the sale of Shares by such
Selling Stockholder hereunder and (ii) the QIU shall not be required to
contribute any amount in excess of the amount by which its fee received for
acting as QIU exceeds the amount of any damages which the QIU has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission or by reason of alleged willful misconduct or
gross negligence. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Selling
Stockholders' respective obligations to contribute pursuant to this Section
8(d) are several in proportion to the total net proceeds they have received
from the sale of Shares hereunder and not joint.
10. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing Date
with the same force and effect as if made on and as of the Closing Date.
(b) The Registration Statement shall have become effective not
later than 5:00 P.M.(and in the case of a Registration Statement filed
under Rule 462(b) of the Act, not later than 10:00 P.M.), New York City
time, on the date of this Agreement or at such later date and time as the
Representatives may approve in writing, and at the Closing Date no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
commenced or shall be pending before or contemplated by the Commission.
(c) (i) Since the date of the latest balance sheet included in
the Registration Statement and the Prospectus, there shall not have been
any material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, affairs or business prospects, whether or not arising in
the ordinary course of business, of the Company, (ii) except as
contemplated by the Prospectus,
29
-29-
since the date of the latest balance sheet included in the Registration
Statement and the Prospectus there shall not have been any change, or any
development involving a prospective material adverse change, in the
capital stock or in the long-term debt of the Company from that set forth
in the Registration Statement and Prospectus, (iii) the Company and its
subsidiaries shall have no liability or obligation, direct or contingent,
which is material to the Company and its subsidiaries, taken as a whole,
other than those reflected in the Registration Statement and the
Prospectus and (iv) on the Closing Date the Representatives shall have
received a certificate dated the Closing Date, signed by Xxxxxx X.
Xxxxxxx and Xxxxxx X. Xxxxx, in their capacities as the President and
Chief Executive Officer and the Chief Financial Officer of the Company,
respectively, confirming the matters set forth in paragraphs (a), (b),
and (c) of this Section 10.
(d) All the representations and warranties of the Selling
Stockholders contained in this Agreement shall be true and correct on the
Closing Date with the same force and effect as if made on and as of the
Closing Date and the Representatives shall have received a certificate to
such effect, dated the Closing Date, from each Selling Stockholder.
(e) The Representatives shall have received on the Closing Date
an opinion (satisfactory to the Representatives and counsel for the
Underwriters), dated the Closing Date, of Xxxxxx & Xxxxxxx, counsel for
the Company, to the effect that:
(i) the Company and each "significant subsidiary" of the
Company (as defined in Rule 1-02(w) of the Commission's Regulation
S-X) (each such subsidiary, a "Significant Subsidiary") has been
duly incorporated, is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation and
has the corporate power and authority required to carry on its
business as it is currently being conducted and to own, lease and
operate its properties;
(ii) the Company is duly qualified and is in good standing as
a foreign corporation authorized to do business in Illinois.
Dominick's Finer Foods, Inc. is duly qualified and is in good
standing as a
30
-30-
foreign Corporation authorized to do business in Illinois and
Indiana;
(iii) all of the outstanding shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and
issued and are fully paid and non-assessable, and to such counsel's
knowledge are owned by the Company, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any
nature other than the pledge of all such Shares pursuant to the New
Credit Facility (as defined in the Prospectus);
(iv) all the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive or similar
rights;
(v) the Shares to be issued and sold by the Company
hereunder have been duly authorized, and when issued and delivered
to the Underwriters against payment therefor as provided by this
Agreement, will have been validly issued and will be fully paid and
non-assessable, and the issuance of such Shares is not subject to
any preemptive or similar rights;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the authorized capital stock of the Company, including
the Common Stock, conforms as to legal matters to the description
thereof contained in the Prospectus;
(viii) the Registration Statement has become effective under
the Act, no stop order suspending its effectiveness has been issued
and no proceedings for that purpose are, to the knowledge of such
counsel, pending before or contemplated by the Commission;
(ix) the execution, delivery and performance of this
Agreement by the Company, and the consummation of the sale of the
Shares to the Underwriters contemplated hereby will not require any
consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body
(except as such may be required under the Act or
31
-31-
other securities or Blue Sky laws) and will not conflict with or
constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of its
subsidiaries or any agreement, indenture or other instrument
identified to such counsel as material to the conduct of the
business of the Company and its subsidiaries and to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their respective properties
are bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees known to such counsel as
applicable to the Company or any of its subsidiaries or their
respective properties;
(x) the Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended; and
(xi) the Registration Statement (including any Registration
Statement filed under 462(b) of the Act, if any) and the Prospectus
and any supplement or amendment thereto (except for financial
statements and the related notes thereto and the other financial
and statistical data contained therein as to which no opinion need
be expressed) comply as to form in all material respects with the
Act.
At the time the foregoing opinion is delivered, such counsel shall
also state that it believes that (except for financial statements and the
related notes thereto and the other financial and statistical data contained
therein) the Registration Statement and the prospectus included therein at the
time the Registration Statement became effective did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
that the Prospectus, as amended or supplemented, if applicable (except for
financial statements and the related notes thereto and the other financial and
statistical data contained therein) does not contain any untrue statement of a
material fact or 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. In making such statement such counsel may state that
their belief is based upon their participation in the preparation of the
Registration Statement
32
-32-
and Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but is without independent check or
verification except as specified.
The opinion of Xxxxxx & Xxxxxxx described in paragraph (e) above
shall be rendered to the Representatives at the request of the Company and
shall so state therein.
(f) The Representatives shall have received on the Closing Date
an opinion (satisfactory to the Representatives and counsel for the
Underwriters), dated the Closing Date, of Xxx Xxxx, General Counsel of
the Company, to the effect that:
(i) such counsel does not know of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of their respective
properties is subject which is required to be described in the
Registration Statement or the Prospectus and is not so described,
or of any contract or other document which is required to be
described in the Registration Statement or the Prospectus or is
required to be filed as an exhibit to the Registration Statement
which is not described or filed as required; and
(ii) to such counsel's knowledge, no holder of any security
of the Company has any right to require registration of shares of
Common Stock or any other security of the Company except as
described in the Registration Statement or Prospectus.
(g) The Representatives shall have received on the Closing Date
an opinion, dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx, counsel
for the Underwriters, as to the matters referred to in clauses (v), (vi),
(viii), (ix) (but only with respect to the statements under the captions
"Description of Capital Stock" and "Underwriting") and a statement to the
effect of the paragraph immediately following clause (xix) of paragraph
(e) above. In making such statement, such counsel may state that their
belief is based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof, but is without
independent check or verification except as specified.
33
-33-
(h) The Representatives shall have received on the Closing Date
an opinion, dated the Closing Date, of counsel for each Selling
Stockholder, which counsel shall be reasonably satisfactory to the
Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by such Selling Stockholders;
(ii) the execution, delivery and performance of this
Agreement by such Selling Stockholder, compliance by such Selling
Stockholder with all the provisions hereof and the consummation of
the transactions contemplated hereby will not require any consent,
approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body (except as
such may be required under the Act or other securities or Blue Sky
laws) and will not conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the charter or
by-laws of such Selling Stockholder or any agreement, indenture or
other instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder or its respective properties is
bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to such Selling
Stockholder or its respective properties;
(iii) the Custody Agreement has been duly authorized, executed
and delivered by such Selling Stockholder and is a valid and
binding agreement of such Selling Stockholder enforceable in
accordance with its terms;
(iv) such Selling Stockholder has full legal right, power and
authority, and any approval required by law (other than any
approval imposed by the Act or the applicable state securities and
Blue Sky laws) to sell, assign, transfer and deliver the Shares to
be sold by it in the manner provided in this Agreement and the
Custody Agreement;
(v) such Selling Stockholder has good and clear title to the
certificates for the Shares to be sold by it and upon delivery
thereof, pursuant hereto and payment therefor, good and clear title
will pass to
34
-34-
the Underwriters, severally, free of all restrictions on transfer,
liens, encumbrances, security interests and claims whatsoever; and
(vi) the power of attorney signed by such Selling Stockholder
appointing Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxx, or either of
them, as its attorney-in-fact to the extent set forth therein with
regard to the transactions contemplated hereby and by the
Registration Statement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder and is a
valid and binding instrument of such Selling Stockholder
enforceable in accordance with its terms, and pursuant to such
power of attorney, such Selling Stockholder has authorized Xxxxxx
X. Xxxxxxx and Xxxxxx X. Xxxxx, or either of them, to execute and
deliver on its behalf this Agreement and any other document
necessary or desirable in connection with transactions contemplated
hereby and to deliver the Shares to be sold by it pursuant to this
Agreement.
(i) The Representatives shall have received a letter on and as of
the Closing Date, in form and substance satisfactory to the
Representatives, from Ernst & Young LLP, independent public accountants,
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus
and substantially in the form and substance of the letter delivered to
the Representatives by Ernst & Young LLP on the date of this Agreement.
(j) The Company and the Selling Stockholders shall not have
failed at or prior to the Closing Date to perform or comply with any of
the agreements herein contained and required to be performed or complied
with by the Company at or prior to the Closing Date.
(k) The Company shall have entered into the New Credit Facility
(as defined in the Registration Statement).
(l) The Yucaipa Warrant Agreement shall have been amended in a
manner satisfactory to the Representatives.
(m) The Representatives shall have received from each Selling
Stockholder, on the Closing Date, either
35
-35-
(x) a certification of such Selling Stockholder that complies in all
respects with the requirements of U.S. Treasury Regulations section
1.1445-2(b)(2), stating that the Selling Stockholder is not a foreign
person (within the meaning of Section 1445(f)(3) of U.S. Internal Revenue
Code of 1986, as amended (the "Code")) for purposes of Section 1445(b)(2)
of the Code; or (y) a copy of a statement that complies in all respects
with the requirements of Treasury Regulations section 1.1445-2(c) (3),
issued by the Company pursuant to Treasury Regulations section
1.897-2(h), certifying that the Firm Shares and the Additional Shares do
not constitute a United States real property interest (within the meaning
of Section 897(c)(1) of the Code) for purposes of Section 1445(b)(3) of
the Code.
The several obligations of the Underwriters to purchase any Additional Shares
hereunder are subject to the delivery to the Representatives on the applicable
Option Closing Date of such documents as the Representatives may reasonably
request with respect to the good standing of the Company, the due authorization
and issuance of such Additional Shares and other matters related to the
issuance of such Additional Shares.
11. Effective Date of Agreement and Termination. This Agreement
shall become effective upon the later of (i) execution of this Agreement and
(ii) when notification of the effectiveness of the Registration Statement has
been released by the Commission.
This Agreement may be terminated at any time prior to the Closing
Date by the Representatives by written notice to the Company (with a copy to
the attorney-in-fact appointed by the Selling Stockholders pursuant to the
power of attorney signed by each of them) if any of the following has occurred:
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or
development involving a prospective material adverse change in the condition,
financial or otherwise, of the Company and subsidiaries, taken as a whole, or
the earnings, affairs, or business prospects of the Company and its
subsidiaries, taken as a whole, whether or not arising in the ordinary course
of business, which would, in the judgment of the Representatives, make it
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus, (ii) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in
36
-36-
economic conditions or in the financial markets of the United States or
elsewhere that, in the judgment of the Representatives, is material and adverse
and would, in the judgment of the Representatives, make it impracticable to
market the Shares on the terms and in the manner contemplated in the
Prospectus, (iii) the suspension or material limitation of trading in
securities on the New York Stock Exchange, the American Stock Exchange or the
NASDAQ National Market System or limitation on prices for securities on any
such exchange or National Market System, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in the opinion of
the Representatives materially and adversely affects, or will materially and
adversely affect, the business or operations of the Company or any subsidiary,
(v) the declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in the
opinion of the Representatives has a material adverse effect on the financial
markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case
may be, any one or more of the Underwriters shall fail or refuse to purchase
the Firm Shares or Additional Shares, as the case may be, which it or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I bears to the total number of Firm
Shares which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as the Representatives may
specify, to purchase the Firm Shares or Additional Shares, as the case may be,
which such defaulting Underwriter or Underwriters, as the case may be, agreed
but failed or refused to purchase on such date; provided that in no event shall
the number of Firm Shares or Additional Shares, as the case may be, which any
Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 11 by an amount in excess of one-ninth of such number
of Firm Shares or Additional Shares, as the case may be, without the written
consent of such Underwriter. If on the Closing Date or on an Option Closing
Date,
37
-37-
as the case may be, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares, or Additional Shares, as the case may be, and the
aggregate number of Firm Shares or Additional Shares, as the case may be, with
respect to which such default occurs is more than one-tenth of the aggregate
number of Shares to be purchased on such date by all Underwriters and
arrangements satisfactory to the Representatives and the applicable Sellers for
purchase of such Shares are not made within 48 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter and the applicable Sellers. In any such case which does not result
in termination of this Agreement, either the Representatives or the Sellers
shall have the right to postpone the Closing Date or the applicable Option
Closing Date, as the case may be, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and
the Prospectus or any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of any such Underwriter under this
Agreement.
12. Agreements of the Selling Stockholders. Each Selling
Stockholder severally agrees with the Representatives and the Company:
(a) To pay or to cause to be paid all transfer taxes, if any,
with respect to the Shares to be sold by such Selling Stockholder; and
(b) To take all reasonable actions in cooperation with the
Company and the Underwriters to cause the Registration Statement to
become effective at the earliest possible time, to do and perform all
things to be done and performed under this Agreement by such Selling
Stockholder prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Shares pursuant to this Agreement
applicable to such Selling Stockholder.
13. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (a) if to the Company, to
Dominick's Supermarkets, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
(b) if to a Selling Stockholder, to it at the address listed on Annex II hereto
and (c) if to any Underwriter or to the Representatives, to the Representatives
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department, or in any case to such
other
38
-38-
address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Selling Stockholders,
the Company, its officers and directors and of the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter or by or on behalf of the Sellers, the
officers or directors of the Company or any controlling person of the Sellers,
(ii) acceptance of the Shares and payment for them hereunder and (iii)
termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because
of any failure or refusal on the part of the Sellers to comply with the terms
or to fulfill any of the conditions of this Agreement, the Company agrees to
reimburse the several Underwriters for all out-of-pocket expenses (including
the reasonable fees and disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Sellers, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
39
-39-
Please confirm that the foregoing correctly sets forth the
agreement between the Company, the Selling Stockholders and the several
Underwriters.
Very truly yours,
DOMINICK'S SUPERMARKETS, INC.
By
------------------------------------
Name:
Title:
THE SELLING STOCKHOLDERS NAMED
IN SCHEDULE II HERETO
By
------------------------------------
Name:
Title: Attorney-in-fact
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By
--------------------------
Name:
Title:
40
SCHEDULE I
Number of Firm Shares
Underwriters to be Purchased
------------ ---------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
BT Securities Corporation
Chase Securities Inc.
----------------------
Total
41
SCHEDULE II
Selling Stockholders
Firm Additional
Name Shares Shares
---- ------ ----------
BT Investment Partners, Inc.
Bankers Trust New York Corporation
Chase Manhattan Investment
Holdings, Inc.
Bahrain International Bank, E.C.
BHF-Bank Aktiengesellschaft
Continental Casualty Company
Crescent/Mach I Partners, L.P.
Crescent Shared Opportunities Fund
FSC Corporation
Indosuez Dominick's Partners
International Nederlanden (US)
Capital Corp.
Midland Montagu Private Equity Inc.
------------ -------------
Total
42
ANNEX I
Required Stockholder Lock-ups
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. XxXxx
Xxxx X. Xxxxx
Xxxxxx X. XxXxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxx
Xxxxx XxXxxxxxxx Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Yucaipa Blackhawk Partners, L.P.
Yucaipa Chicago Partners, L.P.
Yucaipa Dominick's Partners, L.P.
The Yucaipa Companies
Yucaipa Management L.L.C.
Apollo Investment Fund, L.P.
Apollo Investment Fund, III, L.P.
Apollo Overseas Partners III, L.P.
Apollo (U.K.) Partners III, L.P.
BT Investment Partners, Inc.
Bankers Trust New York Corporation
Chase Manhattan Investment Holdings, Inc.
Bahrain International Bank, E.C.
BHF-Bank Aktiengesellschaft
Continental Casualty Company
Crescent/Mach I Partners, L.P.
Crescent Shared Opportunity Fund
FSC Corporation
Indosuez Dominick's Partners
International Nederlanden (US) Capital Corp.
Midland Montagu Private Equity Inc.
