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EXHIBIT 1.1
XXXXXXXX'X, INC.
4 3/4% Convertible Subordinated
Debentures due 2003
STANDBY AGREEMENT
September , 1997
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxxxx'x, Inc., a Tennessee corporation (the "Company"),
proposes to redeem on October 6, 1997 (the "Redemption Date") all of its
outstanding 4 3/4% Convertible Subordinated Debentures due 2003 (the
"Debentures") at a total redemption price of $1,052.1184 per $1,000 principal
amount of Debentures (which amount includes accrued interest to the date of
redemption and the required redemption premium). Each $1,000 principal amount
of Debentures or integral multiple thereof is convertible into Common Stock,
$.10 par value (the "Common Stock"), of the Company at a conversion price of
$42.70 per share (equivalent to 23.42 shares of Common Stock per $1,000
principal amount of Debentures). The right to convert the Debentures into
shares of Common Stock will terminate at the close of business (5:00 p.m., New
York City time) on September 29, 1997 (the "Conversion Expiration Time").
The Company desires to make arrangements with Xxxxx Xxxxxx
Inc., as purchaser (the "Purchaser"), pursuant to which the Purchaser will
purchase authorized but unissued shares of Common Stock which would have been
issuable upon conversion of those Debentures which are not duly surrendered for
conversion prior to the Conversion Expiration Time by persons other than the
Purchaser.
The Company wishes to confirm as follows its agreement with
the Purchaser in respect of such arrangement.
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1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 under the Act
(the "registration statement"), including a prospectus relating to the maximum
number of shares of Common Stock (the "Shares") issuable by the Company upon
conversion of the Debentures and in accordance with this Agreement. The Company
has also filed such amendments thereto, if any, as may have been required to
the date hereof and will file, if required, on or prior to the effective date
of the registration statement one or more additional amendments thereto. As
used in this Agreement, the term "Registration Statement" means such
registration statement in the form in which it becomes effective and includes
all financial statements, reports and documents incorporated by reference
therein and not required to be filed therewith by Form S-3 under the Act (the
"Incorporated Documents"), filed in accordance with the Securities Exchange Act
of 1934, as amended, and the rules, regulations and forms of the Commission
thereunder (collectively, the "Exchange Act") on or before the date on which
the Registration Statement becomes effective; provided, however, that if the
Company files any documents pursuant to Section 13 or 14 of the Exchange Act
after the time the Registration Statement becomes effective and prior to the
termination of the offering of the Common Stock by the Purchasers, which
documents are deemed to be incorporated by reference into the Registration
Statement or the Prospectus, the term "Incorporated Documents" shall include
the documents so filed from and after the time said documents are filed with
the Commission. The term "Prospectus" means the prospectus, including any
Incorporated Documents, on file with the Commission at the time the
Registration Statement becomes effective; provided, however, that if the
prospectus filed by the Company pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Exchange Act differs from such
prospectus, the term "Prospectus" shall refer to the Rule 424(b) Prospectus
from and after the time it is mailed or otherwise delivered to the Commission
for filing.
2. Agreements to Sell and Purchase. (a) The Company hereby
agrees, subject to all the terms and conditions set forth herein, to issue and
sell to the Purchaser and, upon the basis of the representations, warranties
and agreements of the
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Company herein contained and subject to all the terms and conditions set forth
herein, the Purchaser agrees to purchase from the Company the number of shares
of Common Stock that would have been issued upon conversion of all Debentures
that are not duly surrendered for conversion on or prior to the Conversion
Expiration Time by persons other than the Purchaser at a purchase price equal
to $44.92 per share (the "Purchase Price"); provided, however, that the
aggregate number of such shares of Common Stock issued and sold pursuant to
this Agreement shall not exceed 2,019,975. Shares of Common Stock acquired by
the Purchaser pursuant to this Section 2(a) are referred to herein as the
"Purchased Shares."
Certificates for the Purchased Shares to be purchased
hereunder shall be registered in such names and in such denominations as the
Purchaser shall request prior to 9:30 A.M., New York City time, on the second
business day preceding the Closing Date (as defined). Such certificates shall
be made available to the Purchaser in New York City for inspection and
packaging not later than 9:30 A.M., New York City time, on the business day
next preceding the Closing Date. Delivery to the Purchaser of any Purchased
Shares purchased pursuant to this Section 2(a) shall be made at the offices of
Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on October
6, 1997 (the "Closing Date"). The certificates evidencing the Purchased Shares
to be purchased hereunder shall be delivered to the Purchaser on the Closing
Date against payment of the purchase price therefor in immediately available
funds.
(b) Until the Conversion Expiration Time, the Purchaser may
(but shall not be obligated to) solicit or purchase Debentures in the open
market or otherwise in such amounts and at such prices as Purchaser may deem
advisable. The Purchaser agrees to surrender for conversion on the Conversion
Expiration Time any Debentures beneficially owned by it on the Conversion
Expiration Time. Shares of Common Stock issued to the Purchaser upon conversion
of such Debentures may be sold by the Purchaser at any time or from time to
time pursuant to an effective registration statement under the Act (including
the Registration Statement) or an applicable exemption under the Act. Shares of
Common Stock acquired upon conversion of the Debentures referred to in this
Section 2(b) are referred to as "Additional Shares." Purchased Shares and
Additional Shares are referred to in this Agreement as "Acquired Shares."
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(c) As compensation to the Purchaser for its commitment
hereunder, the Company will pay to the Purchaser: (i) on the date hereof,
$362,949 as a standby fee, by wire transfer of immediately available funds, and
(ii) on the Closing Date, in the event the Purchaser acquires Acquired Shares
in excess of 100,999 shares of Common Stock, an amount equal to $2.02 per
Acquired Share for all Acquired Shares, by wire transfer of immediately
available funds; provided, however, that if the closing market price of the
Common Stock (as reported on the New York Stock Exchange Composite Tape) at the
Conversion Expiration Time is greater than the Purchase Price, the Company
shall not be required to pay any amounts due under this clause (ii) with
respect to any Additional Shares. At the option of the Purchaser, in lieu of
being paid by the Company the amount referred to in this Section 2(c)(ii), the
Purchaser may deduct such amount from the Purchase Price payable pursuant to
Section 2(a).
(d) The Purchaser agrees to inform the Company when all
Acquired Shares have been sold or if any offering of Acquired Shares is
otherwise terminated.
(e) Upon advice from the Company pursuant to Section
3(b)(iii) of the happening of any event which requires the amendment of or the
filing of any supplement to the Registration Statement or the Prospectus, the
Purchaser will suspend any offering of Acquired Shares until the Company has so
amended or supplemented the Registration Statement or Prospectus.
3. Agreements of the Company. The Company agrees with the
Purchaser as follows:
(a) The Company will use its best efforts to cause the
Registration Statement to become effective by 5:30 p.m. on the
date hereof and will advise the Purchasers promptly and, if
requested by the Purchaser, will confirm such advice in writing,
when the Company receives notice (written or oral) that the
Registration Statement has become effective.
(b) The Company will advise the Purchaser promptly and, if
requested by the Purchaser, will confirm such advice in writing:
(i) of any request by the Commission for amendment of or a
supplement to the Registration Statement or the Prospectus or
for additional information; (ii) of
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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
purpose; and (iii) within the period of time referred to in the
first sentence of paragraph (e) below, of any change in the
Company's condition (financial or other), business, prospects,
properties, net worth or results of operations, or of the
happening of any event, which makes any statement of a material
fact made in the Registration Statement or the Prospectus (as
then amended or supplemented) untrue in any material respect or
which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the
Act or the regulations thereunder to be stated therein or
necessary in order to make the statements therein (with respect
to the Prospectus, in light of the circumstances under which
they were made) not misleading, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to
comply with the Act or any other law. 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 of such
order at the earliest possible time.
(c) The Company will furnish to the Purchaser, without
charge (i) a signed copy of the registration statement as
originally filed with the Commission and of each amendment
thereto, including financial statements and all exhibits to the
registration statement, (ii) such number of conformed copies of
the registration statement as originally filed and of each
amendment thereto, but without exhibits, as the Purchaser may
request, (iii) such number of copies of the Incorporated
Documents, without exhibits, as the Purchaser may request, and
(iv) two copies of the exhibits to the Incorporated Documents.
(d) The Company will not file any amendment to the
Registration Statement or make any amendment or supplement to
the Prospectus or, prior to the end of the period of time
referred to in the first sentence in subsection (e) below, file
any document which, upon filing becomes an Incorporated
Document, of which the Purchaser shall not pre-
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viously have been advised or to which, after the Purchaser shall
have received a copy of the document proposed to be filed, the
Purchaser shall reasonably object.
(e) As soon after the execution and delivery of this
Agreement as possible and thereafter from time to time for such
period as in the opinion of counsel for the Purchaser a
prospectus is required by the Act to be delivered in connection
with sales by the Purchaser or any dealer, the Company will
expeditiously deliver to the Purchaser and each dealer, without
charge, as many copies of the Prospectus (and of any amendment
or supplement thereto) as the Purchaser may request. The Company
consents to the use of the Prospectus (and of any amendment or
supplement thereto) in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions in
which the Shares are offered by the Purchaser and by all dealers
to whom Shares may be sold, both in connection with the offering
and sale of the Shares and for such period of time thereafter as
the Prospectus is required by the Act to be delivered in
connection with sales by the Purchaser or any dealer. If during
such period of time any event shall occur that in the judgment
of the Company or in the reasonable opinion of counsel for the
Purchaser is required to be set forth in the Prospectus (as then
amended or supplemented) or should be set forth therein in order
to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if
it is necessary to supplement or amend the Prospectus (or to
file under the Exchange Act any document which, upon filing,
becomes an Incorporated Document) in order to comply with the
Act or any other law, the Company will forthwith prepare and,
subject to the provisions of paragraph (d) above, file with the
Commission an appropriate supplement or amendment thereto (or to
such document), and will expeditiously furnish to the Purchaser
and dealers a reasonable number of copies thereof. In the event
that the Company and the Purchaser agree that the Prospectus
should be amended or supplemented, the Company, if requested by
the Purchaser, will promptly issue a press release announcing or
disclosing the matters to be covered by the proposed amendment
or supplement.
(f) The Company will cooperate with the Purchaser and with
counsel for the Purchaser in connection with the
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registration or qualification of the Shares for offering and
sale by the Purchaser and by dealers under the securities or
Blue Sky laws of such jurisdictions as the Purchaser may
designate and will file such consents to service of process or
other documents necessary or appropriate in order to effect such
registration or qualification; provided, however, that in no
event shall the Company be obligated to (i) qualify as a foreign
corporation or as a broker or dealer in securities in any
jurisdiction where it would not otherwise be required to so
qualify but for this Section 3(f), (ii) file any general consent
to service of process in any jurisdiction where it is not at the
date hereof then so subject or (iii) subject itself to taxation
in any such jurisdiction if it is not so subject.
(g) The Company will make generally available to its
security holders a consolidated earnings statement, which need
not be audited, covering a twelve-month period commencing after
the effective date of the Registration Statement and ending not
later than 15 months thereafter, as soon as practicable after
the end of such period, which consolidated earnings statement
shall satisfy the provisions of Section 11(a) of the Act.
(h) During the period of five years hereafter, the Company
will furnish to the Purchaser as soon as available, a copy of
each report of the Company mailed to stockholders or filed with
the Commission.
(i) The Company will apply the net proceeds from the sale
of the Shares substantially in accordance with the description
set forth in the Prospectus.
(j) Not later than the business day immediately following
the effective date of the Registration Statement, the Company
will mail or cause to be mailed to registered holders of
Debentures or their agents a Prospectus and a notice of
redemption complying with the requirements of the Indenture
dated as of October 26, 1993 (the "Indenture") between the
Company and Union Planters National Bank, as Trustee, as in
effect on the date hereof (the "Notice of Redemption") with
respect to redemption of the Debentures. In addition, the
Company will cause to be published in The Wall Street Journal on
not later than the second business day immediately following the
effective
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date of the Registration Statement an advertisement
relating to the redemption of the Debentures.
(k) The Company will advise the Purchaser daily or direct
Union Planters National Bank, as conversion and paying agent,
respectively, for the Debentures to advise the Purchaser daily
of the principal amount of Debentures surrendered for conversion
into Common Stock and surrendered for redemption on the
preceding day.
(l) Prior to the Conversion Expiration Time, the Company
will take no action the effect of which would, in accordance
with Section 1304 of the Indenture, be to require an adjustment
in the conversion price of the Debentures.
(m) The Company will pay all costs and expenses incident to
the performance of its obligations hereunder, including (i) the
costs of preparation, printing or duplication, as the case may
be, and filing of the Registration Statement (including the
exhibits thereto), the Prospectus, and any amendments or
supplements to the Registration Statement or the Prospectus, and
any other documents relating to the call for redemption of the
Debentures, and expenses in connection with the duplication of
this redemption of the Debentures, and expenses in connection
with the duplication of this Agreement, (ii) the costs relating
to the issuance and delivery of the Common Stock (including
transfer taxes, if any), (iii) the fees and expenses of the
Company's accountants and counsel, (iv) the costs of furnishing
to the Purchaser and to each dealer, if any (including postage,
air freight charges and charges for counting and packing) such
copies of the Registration Statement, the Prospectus, and all
amendments or supplements to the Registration Statement and the
Prospectus, and any other documents relating to the call for
redemption of the Debentures, as may be requested for use in
connection with the offering and sale of the Purchased Shares by
the Purchaser or by dealers to whom such shares may be sold, (v)
the Commission's registration fee and the costs of filing with
the National Association of Securities Dealers, Inc., if
required, (vi) the fees and expenses of the Trustee and any
transfer, exchange, redemption or conversion agents for the
Common Stock and Debentures, (vii) the fees for listing of the
Common Stock on
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the New York Stock Exchange and (viii) the expenses in
connection with the qualification of the Purchased Shares under
state securities laws, including filing fees, the reasonable
fees and disbursements of counsel for the Purchaser in
connection therewith and in connection with the preparation of
the Blue Sky Survey, if any, and the costs of printing and
delivery to the Purchaser of copies of the Blue Sky Survey, if
any.
(n) The Company will also reimburse the Purchaser for all
of the Purchaser's out-of-pocket expenses reasonably incurred in
connection herewith, including reasonable fees and expenses of
counsel to the Purchaser.
(o) Except as otherwise provided in this Agreement, the
Company will not sell, contract to sell or otherwise dispose of
any Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or grant any
options or warrants to purchase Common Stock (except for any
securities issued, offered, sold or disposed of by the Company
pursuant to its stock option and other benefit plans maintained
for, or employment agreements with, its officers, directors and
employees or Common Stock issued or distributed in connection
with the conversion or exercise of any security of the Company
outstanding on the date of the Prospectus), for a period of 90
days after the date of the Prospectus, without the prior written
consent of the Purchaser.
(p) The Company has furnished or will furnish to the
Purchaser "lock-up" letters, in form and substance satisfactory
to the Purchaser, signed by each of its current executive
officers and directors prohibiting them from offering, selling,
contracting to sell or otherwise disposing of any Common Stock
for a period of 90 days after the date of the Prospectus.
(q) Except as stated in this Agreement and in the
Prospectus, the Company has not taken, nor will it take,
directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the
sale or resale of the Shares.
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(r) The Company will have the Shares listed, subject to
notice of issuance, on the New York Stock Exchange on or before
the Closing Date.
4. Representations and Warranties of the Company. The
Company represents and warrants to the Purchaser that:
(a) Each Prospectus included as part of the registration
statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act,
complied when so filed in all material respects with the
provisions of the Act. The Commission has not issued any order
preventing or suspending the use of any Prospectus.
(b) The Company and the transactions contemplated by this
Agreement meet the requirements for using Form S-3 under the
Act. The registration statement in the form in which it became
or becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective and the
prospectus and any supplement or amendment thereto when filed
with the Commission under Rule 424(b) under the Act, complied or
will comply in all material respects with the provisions of the
Act and will not at any such times contain an untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein
(with respect to the Prospectus, in light of the circumstances
under which they were made) not misleading, except that this
representation and warranty does not apply to statements in or
omissions from the registration statement or the prospectus made
in reliance upon and in conformity with information relating to
the Purchaser furnished to the Company in writing by or on
behalf of the Purchaser through the Purchaser expressly for use
therein.
(c) The Incorporated Documents heretofore filed, when they
were filed (or, if any amendment with respect to any such
document was filed, when such amendment was filed), conformed in
all material respects with the requirements of the Exchange Act,
any further Incorporated Documents so filed will, when they are
filed, conform in all material respects with the requirements of
the Exchange Act; no such document when it was filed (or, if an
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amendment with respect to any such document was filed, when such
amendment was filed), contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading; and no such further document, when it is
filed, will contain an untrue statement of a material fact or
will omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(d) All the outstanding shares of Common Stock of the
Company have been duly authorized and validly issued, are fully
paid and nonassessable and are free of any preemptive or similar
rights; the Purchased Shares have been duly authorized and, when
issued and delivered to the Purchaser against payment therefor
in accordance with the terms hereof, will be validly issued,
fully paid and nonassessable and free of any preemptive or
similar rights; the Additional Shares to be issued by the
Company have been duly authorized and when issued and delivered
to the Purchaser upon conversion of any Debentures held by it in
accordance with the terms thereof and hereof, will be validly
issued, fully paid and nonassessable and free of any preemptive
or similar rights; and the capital stock of the Company conforms
to the description thereof in the registration statement and the
Prospectus.
(e) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of
Tennessee with full corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus, and
is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature
of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to
register or qualify does not have a Material Adverse Effect (as
defined).
(f) All the Company's subsidiaries (collectively, the
"Subsidiaries") are listed in an exhibit to the Company's Annual
Report on Form 10-K which is incorporated by
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reference into the Registration Statement. Each Subsidiary is a
corporation or partnership duly organized, validly existing and,
if a corporation, in good standing in the jurisdiction of its
incorporation with full power (corporate or otherwise) and
authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement
and the Prospectus, and is duly registered and qualified to
conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or
qualification, except where the failure so to register or
qualify does not have a Material Adverse Effect (as defined).
(g) There are no legal or governmental proceedings pending
or, to the knowledge of the Company, threatened, against the
Company or any of the Subsidiaries, or to which the Company or
any of the Subsidiaries, or to which any of their respective
properties, is subject, that are required to be described in the
Registration Statement or the Prospectus but are not described
as required, and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in
the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement or any Incorporated
Document that are not described or filed as required by the Act
or the Exchange Act.
(h) Neither of the Company nor any of the Subsidiaries is
(A) in violation of its respective articles, certificate or
charter of incorporation, by-laws or, if such Subsidiary is a
partnership, its partnership agreement (each, an "Organizational
Document"), (B) in default (or, with notice or lapse of time or
both, would be in default) in the performance or observance of
any obligation, agreement, covenant or condition contained in
any bond, debenture, note or any other evidence of indebtedness
or in any agreement, indenture, lease or other instrument to
which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties is
bound, or (C) in violation of any law, statute, judgment,
decree, order, rule or regulation of any domestic or foreign
court with jurisdiction over the Company or the Subsidiaries or
any of their respective assets or properties, or other
governmental or regulatory authority, agency or
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other body, other than, in the case of clause (B) or (C), such
defaults or violations which, individually or in the aggregate,
could not reasonably be expected to have or result in a Material
Adverse Effect. As used herein, "Material Adverse Effect" shall
mean a material adverse effect on the business, condition
(financial or otherwise), results of operations, business
affairs or business prospects of the Company and the
Subsidiaries taken as a whole.
(i) None of the call for the redemption of the Debentures,
the redemption of the Debentures (so long as paid for with the
proceeds of the Purchased Shares), the issuance and sale of the
Shares, the execution, delivery or performance of this Agreement
by the Company or the consummation by the Company of the
transactions contemplated hereby (i) requires any consent,
approval, authorization or other order of or registration or
filing with, any court, regulatory body, administrative agency
or other governmental body, agency or official (except such as
may be required for the registration of the Shares under the Act
and the Exchange Act and compliance with the securities or Blue
Sky laws of various jurisdictions, all of which have been or
will be effected in accordance with this Agreement) or conflicts
or will conflict with or constitutes or will constitute a breach
of, or a default under, any Organizational Documents, of the
Company or any of the Subsidiaries or (ii) conflicts or will
conflict with or constitutes or will constitute a breach of, or
a default under, any agreement, indenture, lease or other
instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or any of their respective
properties may be bound and which, in the case of this clause
(ii), is material to the Company and the Subsidiaries, taken as
a whole, or violates or will violate any law, statute, rule or
regulation, or any judgment, decree or order, in any such case,
of any domestic or foreign court or governmental or regulatory
agency or other body having jurisdiction over the Company or any
of the Subsidiaries or any of their respective properties or
assets.
(j) The accountants, Coopers & Xxxxxxx L.L.P. and Deloitte
& Touche, LLP, who have certified or shall certify the financial
statements included or incorporated by
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reference in the Registration Statement and the Prospectus (or
any amendment or supplement thereto) are independent public
accountants as required by Regulation S-X under the Act.
(k) The financial statements, together with related
schedules and notes, included or incorporated by reference in
the Registration Statement and the Prospectus (and any amendment
or supplement thereto), present fairly in all material respects
the consolidated financial position, results of operations and
changes in financial position of the Company and the
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; and the other financial and
statistical information and data included or incorporated by
reference in the Registration Statement and the Prospectus (and
any amendment or supplement thereto) are accurately presented in
all material respects and prepared on a basis materially
consistent with such financial statements and the books and
records of the Company and the Subsidiaries.
(l) This Agreement has been duly authorized, executed and
delivered by the Company.
(m) Except as set forth in or contemplated by the
Registration Statement and the Prospectus (or any amendment or
supplement thereto), subsequent to the respective dates as of
which such information is given in the Registration Statement
and the Prospectus (or any amendment or supplement thereto),
there has been no (A) material adverse change in the business,
condition (financial or otherwise), results of operations,
business affairs or business prospects of the Company and the
Subsidiaries taken as a whole, (B) transaction entered into by
the Company or any of the Subsidiaries, other than in the
ordinary course of business, that is material to the Company and
the Subsidiaries, taken as a whole, or (C) material change in
the capital stock or material increase in the short-term debt or
long-term debt of the Company (other than in the ordinary course
of business).
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(n) Each of the Company and the Subsidiaries has (i) good
and marketable title to all real property described in the
Prospectus as being owned by it, (ii) good title to all personal
property described in the Prospectus as being owned by it and
(iii) good title to the leasehold estate in the real and
personal property described in the Prospectus as being leased by
it, in each case, free and clear of all liens, claims, security
interests or other encumbrances except as provided in the
related lease or such as are described in the Registration
Statement and the Prospectus or in a document filed as an
exhibit to the Registration Statement, and except where the
failure to have such title or the existence of such liens,
claims, security interests or other encumbrances or the
invalidity or unenforceability of any such lease would not,
individually or in the aggregate, be reasonably expected to have
or result in a Material Adverse Effect.
(o) The Company has not distributed and, prior to the later
to occur of (i) the Closing Date and (ii) completion of the
distribution of the Shares, will not distribute any offering
material in connection with the offering and sale of the Shares
other than the Registration Statement, the Prospectus or other
materials, if any, permitted by the Act.
(p) Each of the Company and the Subsidiaries has obtained
all material consents, approvals, orders, certificates,
licenses, permits, franchises and other authorizations of and
from, and has made all material declarations and filings with,
all governmental and regulatory authorities, all self-regulatory
organizations and all courts and other tribunals necessary to
own, lease, license and use their respective properties and
assets and to conduct their respective businesses in the manner
described in the Prospectus, except where the failure to so
obtain or so declare or file would not be reasonably likely to
have or result in a Material Adverse Effect.
(q) Each of the Company and the Subsidiaries has filed all
necessary federal, state and foreign income and franchise tax
returns, and has paid all taxes shown as due thereon; and there
is no tax deficiency that has been asserted against the Company
or the Subsidiaries, in each
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case other than as would not individually or in the aggregate
have a Material Adverse Effect.
(r) 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 because of the filing of the
registration statement or consummation of the transactions
contemplated by this Agreement, except such as have been waived
or may not be exercised. Except as described in the Prospectus,
there are no outstanding options, warrants or other rights
calling for the issuance of, and there are no commitments, plans
or arrangements to issue, any shares of Common Stock of the
Company or any security convertible into or exchangeable or
exercisable for Common Stock of the Company.
(s) Neither the Company nor any of the Subsidiaries is an
"investment company" or a company "controlled by" an "investment
company" as such terms are defined in the Investment Company Act
of 1940, as amended, and the rules and regulations thereunder.
(t) No strike, labor problem, dispute, slowdown, work
stoppage or disturbance with the employees of the Company or any
of the Subsidiaries exists or, to the knowledge of the Company,
is threatened which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
(u) Each of the Company and the Subsidiaries owns or
possesses, or can acquire on reasonable terms, adequate
licenses, trademarks, service marks, trade names, copyrights and
know-how (including trade secrets and other proprietary or
confidential information, systems or procedures) (collectively,
"intellectual property") necessary to conduct the business now
or proposed to be operated by each of them as described in the
Prospectus, except where the failure to own, possess or have the
ability to acquire any such intellectual property could not,
individually or in the aggregate, be reasonably expected to have
a Material Adverse Effect; and none of the Company or any of the
Subsidiaries has received any notice of infringement of or
conflict with (and none of them knows of any such infringement
of or conflict with) asserted rights of others with respect to
any of such intellectual property.
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(v) The Company has insurance in such amounts and covering
such risks and liabilities as are in accordance, in all material
respects, with normal industry practice.
(w) Other than as disclosed in the Prospectus, none of the
Company or any Subsidiary has any profit sharing, deferred
compensation, stock option, stock purchase, phantom stock or
similar plans, including agreements evidencing rights to
purchase securities or to share in the profits of the Company or
any Subsidiary which is material to the Company and the
Subsidiaries, taken as a whole.
(x) The statistical and market-related data included in the
Prospectus are based on or derived from sources which the
Company believes to be reliable and accurate in all material
respects or represent the Company's good faith estimates that
are made on the basis of data derived from such sources.
(y) Except as described in the Prospectus or as would not,
individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect (A) each of the Company and the
Subsidiaries is in compliance with and not subject to any known
liability under applicable Environmental Laws (as defined
below), (B) each of the Company and the Subsidiaries has made
all filings and provided all notices required under any
applicable Environmental Law, and has, and is in compliance
with, all permits required under any applicable Environmental
Laws and each of them is in full force and effect, (C) (x) there
is no pending civil, criminal or administrative action, or
pending hearing or suit, (y) neither the Company nor any
Subsidiary has received any demand, claim, or notice of
violation and (z) to the knowledge of the Company, there is no
investigation, proceeding, notice or demand letter or request
for information threatened against the Company or any of the
Subsidiaries in the case of (x), (y) and (z), under any
Environmental Law, (D) no lien, charge, encumbrance or
restriction has been recorded under any Environmental Law with
respect to any assets, facility or property owned, operated,
leased or controlled by the Company or any Subsidiary, (E)
neither the Company nor any Subsidiary has received notice that
it has been identified as a potentially responsible party under
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980,
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as amended ("CERCLA"), or any comparable state law, (F) no property
or facility of the Company or any Subsidiary is (i) listed or, to the
knowledge of the Company, proposed for listing on the National
Priorities List under CERCLA or (ii) listed in the Comprehensive
Environmental Response, Compensation, Liability Information System
List promulgated pursuant to CERCLA, or on any comparable list
maintained by any state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means
all applicable federal, provincial, state and local laws or
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder, relating to pollution or
protection of public or employee health and safety or the environment,
including, without limitation, laws relating to (i) emissions,
discharges, releases or threatened releases of Hazardous Materials (as
defined below) into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface
strata), (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of
Hazardous Materials, and (iii) underground and above ground storage
tanks and related piping, and emissions, discharges, releases or
threatened releases therefrom. The term "Hazardous Material" means (a)
any "hazardous substance" as defined in the Comprehensive
Environmental Response, the Resource Conservation and Recovery Act, as
amended, (b) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (c) any petroleum or
petroleum product, (d) any polychlorinated biphenyl and (e) any
pollutant or contaminant or hazardous, dangerous or toxic chemical,
material, waste or substance.
(z) Except as described in the Prospectus, neither the Company
nor any of the Subsidiaries has incurred any liability for any
prohibited transaction or funding deficiency or any complete or
partial withdrawal liability with respect to any pension, profit
sharing or other plan which is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), to which the
Company or any of the Subsidiaries makes or ever has made a
contribution and in which any employee of the Company or any such
Subsidiary is or has ever been a participant,
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which in the aggregate would reasonably be expected to have a
Material Adverse Effect. With respect to such plans, each of the
Company and the Subsidiaries is in compliance in all respects with
all applicable provisions of ERISA, except where the failure to so
comply would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
5. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless the Purchaser and each person, if any, who
controls the Purchaser 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 expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (with respect to the
Prospectus, in light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating to
the Purchaser furnished in writing to the Company by or on behalf of the
Purchaser expressly for use in connection therewith. The foregoing indemnity
agreement shall be in addition to any liability which the Company may otherwise
have.
(b) If any action, suit or proceeding shall be brought
against the Purchaser or any person controlling the Purchaser in respect of
which indemnity may be sought against the Company hereunder, the Purchaser or
such controlling person shall promptly notify the Company and the Company shall
assume the defense thereof, including the employment of counsel and payment of
all fees and expenses. The Purchaser or any such controlling person shall have
the right to employ separate counsel in any such action, suit or proceeding and
to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the Purchaser or such controlling person
unless (i) the Company has agreed in writing to pay such fees and expenses,
(ii) the Company has failed to as-
20
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sume the defense and employ counsel, or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both the
Purchaser or such controlling person and the Company and the Purchaser or such
controlling person shall have been advised by its counsel that representation
of such indemnified party and the Company by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or
not such representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the Company shall not
have the right to assume the defense of such action, suit or proceeding on
behalf of the Purchaser or such controlling person). It is understood, however,
that the Company shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits or
proceedings arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to one local counsel in each separate jurisdiction) at
any time for the Purchaser and controlling persons not having actual or
potential differing interests with the Purchaser or among themselves, which
firm shall be designated in writing by the Purchaser, and that all such fees
and expenses shall be reimbursed as they are incurred, but not more frequently
than monthly. The Company shall not be liable for any settlement, compromise or
consent to the entry of any judgment with respect to any such action, suit or
proceeding effected without its written consent, but if settled with such
written consent, or if there be a final nonappealable judgment for the
plaintiff in any such action, suit or proceeding, the Company agrees to
indemnify and hold harmless the Purchaser, to the extent provided in the
preceding paragraph, and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
(c) The Purchaser agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement, and
any person who controls the Company 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 to the Purchaser, but only with respect to
information relating to the Purchaser furnished in writing by or on behalf of
the Purchaser expressly for use in the Registration Statement or the Prospectus
or any amendment or supplement thereto. If any action, suit or proceeding shall
be brought
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against the Company, any of its directors, any such officer, or any such
controlling person based on the Registration Statement or the Prospectus or any
amendment or supplement thereto, and in respect of which indemnity may be
sought against the Purchaser pursuant to this paragraph (c), the Purchaser
shall have the rights and duties given to the Company by paragraph (b) above
(except that if the Company shall have assumed the defense thereof the
Purchaser 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 Purchaser's expense), and the Company, its
directors, any such officer, and any such controlling person shall have the
rights and duties given to the Purchaser by paragraph (b) above. The foregoing
indemnity agreement shall be in addition to any liability which the Purchaser
may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an 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 or expenses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Purchaser 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 on the one hand and the Purchaser on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Purchaser on the other shall be deemed to be in the same
proportion as the aggregate Redemption Price of all Debentures outstanding on
the date of this Agreement bears to the total compensation received by the
Purchaser pursuant to Section 2. The relative fault of the Company on the one
hand and the Purchaser on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or by the
Purchaser on the other hand and the par-
22
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ties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company and the Purchaser agree that it would not be
just and equitable if contribution pursuant to this Section 5 were determined
by a pro rata allocation or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in paragraph (d)
above 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 any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 5, the Purchaser
shall not be required to contribute any amount in excess of the amount by which
the aggregate Purchase Price of the Purchased Shares pursuant to Section 2
exceeds the amount of any damages which the Purchaser 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.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or 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 action, suit or proceeding and does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of any indemnified party.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 5 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred, but not
more frequently than monthly. The indemnity and contribution agreements
contained in this Section 5 and the representations
23
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and warranties of the Company set forth in this Agreement shall remain
operative and in full force and effect, regardless of (i) any investigation
made by or on behalf of the Purchaser or any person controlling the Purchaser,
the Company, its directors or officers, or any person controlling the Company,
(ii) acceptance of any Shares and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to the Purchaser or any person
controlling the Purchaser, or to the Company, its directors or officers, or any
person controlling the Company, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
5.
6. Conditions of the Purchaser's Obligations. The obligations
of the Purchaser to purchase the Purchased Shares hereunder are subject to the
following conditions:
(a) The registration statement shall have become effective not
later than 5:30 P.M., New York City time, on the date hereof, or of
such later date and time as shall be consented to in writing by the
Purchaser.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving
a prospective change, in or affecting the condition (financial or
other), business, properties, net worth, or results of operations of
the Company or the Subsidiaries not contemplated by the Prospectus,
which, in the Purchaser's reasonable opinion, would materially
adversely affect the market for the Shares, or (ii) any event or
development relating to or involving the Company or any officer or
director of the Company which makes any statement made in the
Prospectus untrue or which, in the opinion of the Company and its
counsel or the Purchaser and its counsel, requires the making of any
addition to or change in the Prospectus in order to state a material
fact required by the Act or any other law to be stated therein or
necessary in order to make the statements therein not misleading, if
amending or supplementing the Prospectus to reflect such event or
development would, in the Purchaser's reasonable opinion, materially
adversely affect the market for the Shares.
(c) On the effective date of the Registration Statement and
prior to the mailing of the notice of redemption
24
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for the Debentures as described in the Prospectus and the
Registration Statement (the "Notice of Redemption"), the Purchaser
shall have received opinions of each of Xxxxx X. Xxxxxx, Executive
Vice President of Law and General Counsel of the Company (as to the
matters set forth in paragraphs (viii), (xiii)(A) and (xvi) below and
the penultimate paragraph of this Section 6(c) and Xxxxxx & Bird LLP,
counsel for the Company (as to the matters set forth in paragraphs
(i), (ii), (iii), (iv), (v), (vi), (vii), (ix), (x), (xi), (xii),
(xiii)(B), (xiv), (xv) and (xvii) below and the penultimate paragraph
of this Section 6(c). Each opinion shall be dated as of the effective
date and otherwise satisfactory to the Purchaser and counsel for the
Purchaser.
(i) The Company has been duly incorporated and is
validly existing under the laws of the State of Tennessee,
with corporate power and authority to own, lease and
operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) and to enter into
and perform its obligations under this agreement; the
Company is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which it conducts its business (based on
certificates of officers of the Company) and such
qualification is required, whether by reason of the
ownership or leasing of property or the conduct of its
business, except where the failure so to qualify or to be
in good standing would not result in a Material Adverse
Effect;
(ii) The authorized and outstanding capital stock of
the Company is as set forth under the caption "Description
of Capital Stock" in the Prospectus; and the authorized
capital stock of the Company conforms in all material
respects as to legal matters to the description thereof
contained in the Prospectus under the caption "Description
of Capital Stock";
(iii) All the shares of capital stock of the Company
outstanding prior to the issuance of the Shares have been
duly authorized and validly issued, and are fully paid and
nonassessable;
25
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(iv) The Debentures are convertible into shares of
Common Stock as provided in the Indenture and as described
in the Prospectus and, to the knowledge of such counsel,
such shares of Common Stock have been duly reserved for
issuance upon conversion of the Debentures. The Acquired
Shares have been duly authorized and, when issued and
delivered to the Purchaser against payment therefor in
accordance with the terms hereof, will be validly issued,
fully paid and nonassessable and free of any preemptive, or
to the knowledge of such counsel, similar rights that
entitle or will entitle any person to acquire any Acquired
Shares upon the issuance thereof by the Company;
(v) The form of certificates for the Shares conforms
in all material respects to the requirements of the
Tennessee Business Corporation Act;
(vi) The Registration Statement and all post-effective
amendments, if any, have become effective under the Act
and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are
pending before or contemplated by the Commission; and any
required filing of the Prospectus pursuant to Rule 424(b)
has been made in accordance with Rule 424(b);
(vii) The Company has the requisite corporate power
and authority to enter into this Agreement and to issue,
sell and deliver the Acquired Shares to the Purchaser as
provided herein, and this Agreement has been duly
authorized, executed and delivered by the Company;
(viii) Neither the Company nor any of the Subsidiaries
is in violation of its respective Organizational Document;
provided, however, that with respect to the business
purpose clauses of the charter of the Company and the
Subsidiaries, such opinion may be limited to the knowledge
of such counsel after due inquiry; to the knowledge of such
counsel, no default by the Company exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract
identi-
26
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fied to such counsel as material by the Company or filed as
an exhibit to any Incorporated Document; and to the
knowledge of such counsel, the Company is not in breach or
violation of any law, ordinance, statute, rule or
regulation, or any judgment, decree or order or
governmental or regulatory agency or other body having
jurisdiction over the Company or any of its properties or
assets in any material respect;
(ix) The Company is not an "investment company" or a
company "controlled by" or required to register as an
investment company as such terms are defined in the
Investment Company Act of 1940, as amended, and the rules
and regulations thereunder;
(x) The issuance, sale and delivery of the Acquired
Shares, the execution, delivery and performance by the
Company of this Agreement (assuming due authorization and
execution by the Purchaser), and the consummation by the
Company of the transactions contemplated hereby and the
compliance by the Company with the terms of this Agreement
do not conflict with or constitute or result in a breach or
violation by the Company of (A) any provision of the
Charter of Incorporation or By-laws of the Company, (B) any
of the terms or provisions of, or constitute a default (or
an event which, with notice or lapse of time or both, would
constitute a default) by the Company, or give rise to any
right to accelerate the maturity or require the prepayment
of any indebtedness under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company under any agreement of
the Company identified to such counsel as material or (C)
any law, statute, rule, or regulation or any order, decree
or judgment known to such counsel to be applicable to the
Company, of any court or governmental or regulatory agency
or body or arbitrator known to such counsel to have
jurisdiction over the Company or any of its properties or
assets;
(xi) No consent, waiver, approval, authorization,
license, qualification or order of or filing or
registration with, any court or governmental or regulatory
agency or body is required for the execution
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and delivery by the Company of this Agreement, the offer,
sale and delivery of the Acquired Shares, the performance
by the Company of its obligations under this Agreement, or
for the consummation of any of the transactions
contemplated hereby, except, such as may be required under
the "blue sky" laws of any jurisdiction in connection with
the offer, sale and delivery of the Acquired Shares by the
Purchaser (as to which such counsel need express no
opinion);
(xii) The Registration Statement and the Prospectus
and any supplements or amendments thereto (except for the
financial statements and the notes thereto and the
schedules and other financial and statistical data included
therein, as to which such counsel need not express any
opinion) comply as to form in all material respects with
the requirements of the Act; and each of the Incorporated
Documents (except for the financial statements and the
notes thereto and the schedules and other financial and
statistical data included therein, as to which counsel need
not express any opinion) complies as to form in all
material respects with the Exchange Act;
(xiii) To the knowledge of such counsel, (A) other
than as described or contemplated in the Prospectus (or any
supplement thereto), there are no legal or governmental
proceedings pending or threatened against the Company or
any of the Subsidiaries, or to which the Company or any of
the Subsidiaries, or any of their property, is subject,
which in the judgment of the Company could reasonably be
expected to have a Material Adverse Effect and (B) there
are no agreements, contracts, indentures, leases or other
instruments, that are required to be described in the
Registration Statement or the Prospectus (or any amendment
or supplement thereto) or to be filed as an exhibit to the
Registration Statement or any Incorporated Document that
are not described or filed as required, as the case may be;
(xiv) The redemption of all of the outstanding
Debentures on the Redemption Date has been duly authorized
by the Company; and the only remaining action required by
the terms of the Debentures to call
28
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the Debentures for redemption on the Redemption Date is the
giving of the Notice of Redemption to holders of Debentures
by mail in accordance with the requirements contained in
the Indenture and the payment by the Company of the
redemption price in accordance with the terms of the
Indenture;
(xv) Except as described in the Prospectus, to such
counsel's knowledge, there are no outstanding options,
warrants or other rights calling for the issuance of, and
such counsel does not know of any commitment, plan or
arrangement to issue, any shares of capital stock of the
Company or any security convertible into or exchangeable or
exercisable for capital stock of the Company;
(xvi) Except as described in the Prospectus, 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 because
of the filing of the registration statement or consummation
of the transactions contemplated by this Agreement, except
such as have been waived or may not be exercised; and
(xvii) The statements in the Registration Statement
and the Prospectus under the caption "Certain Federal
Income Tax Considerations," insofar as they are
descriptions of legal documents or refer to statements of
law or legal conclusions, are accurate in all material
respects.
In addition, such counsel shall state that although counsel
has not undertaken, except as otherwise indicated in their opinion, to
determine independently, and does not assume any responsibility for,
the accuracy or completeness of the statements in the Registration
Statement, such counsel has participated in the preparation of the
Registration Statement and the Prospectus, including review and
discussion of the contents thereof (including review and discussion of
the contents of all Incorporated Documents), and nothing has come to
the attention of such counsel that has caused them to believe that the
Registration Statement (including the Incorporated Documents) at the
time the Registration Statement became effective, or the Prospec-
29
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tus, as of its date and as of the Closing Date, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein (with respect to the Prospectus, in light of the
circumstances under which they were made) not misleading or that any
amendment or supplement to the Prospectus, as of its respective date,
and as of the Closing Date, contained any untrue statement of a
material fact or omitted 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 (it being understood that
such counsel need express no opinion with respect to the financial
statements and the notes thereto and the schedules and other
financial and statistical data included in the Registration Statement
or the Prospectus or any Incorporated Document).
In rendering their opinion as aforesaid, counsel may rely
upon an opinion or opinions, each dated the Closing Date, of other
counsel retained by them or the Company as to laws of any jurisdiction
other than the United States or the States of Georgia and Tennessee;
provided, however, that (1) each such local counsel is acceptable to
the Purchaser, (2) such reliance is expressly authorized by each
opinion so relied upon and a copy of each such opinion is delivered to
the Purchaser and is, in form and substance satisfactory to them and
their counsel, and (3) counsel shall state in their opinion that they
believe that they and the Purchaser are justified in relying thereon.
(d) On the effective date of the Registration Statement and
prior to the mailing of the Notice of Redemption, an opinion of
Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Purchaser, dated the Closing
Date and addressed to the Purchaser, as Representatives of the
Purchaser, with respect to the matters referred to in clauses (vi)
and (xii) and the penultimate subparagraph of the foregoing paragraph
(c) and such other related matters as the Purchaser may request. The
opinion of such counsel may be limited to the laws of the State of
New York, the General Corporation Law of the State of Delaware and
the Federal laws of the United States. In rendering their opinion as
aforesaid, counsel may, as to factual matters, rely upon written
certificates or statements of officers of the Company.
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(e) On the effective date of the Registration Statement and
prior to the mailing of the Notice of Redemption, the Purchaser shall
have received a letter addressed to the Purchaser, and dated the date
hereof from Coopers & Xxxxxxx L.L.P., independent certified public
accountants, substantially in the form heretofore approved by the
Purchaser.
(f) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been taken or, to the knowledge of the
Company, shall be contemplated by the Commission at or prior to the
Closing Date; (ii) there shall not have been any material change in
the capital stock of the Company nor any material increase in the
short-term or long-term debt of the Company (other than in the
ordinary course of business) from that set forth in or contemplated
by the Registration Statement or the Prospectus (or any amendment or
Supplement thereto); (iii) there shall not have been, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus (or any amendment or supplement
thereto), except as may otherwise be stated in the Registration
Statement and Prospectus (or any amendment or supplement thereto),
any material adverse change in the condition (financial or other),
business, prospects, properties, net worth or results of operations
of the Company and the Subsidiaries taken as a whole; (iv) the
Company and the Subsidiaries shall not have any liabilities or
obligations, direct or contingent (whether or not in the ordinary
course of business), that are material to the Company and the
Subsidiaries, taken as a whole, other than those contemplated by the
Registration Statement or the Prospectus (or any amendment or
supplement thereto); and (v) all the representations and warranties
of the Company contained in this Agreement shall be true and correct
in all material respects on and as of the date hereof and on and as
of the Closing Date as if made on and as of the Closing Date, and the
Purchaser shall have received a certificate, dated the Closing Date
and signed by the Chairman of the Board or the President or the
principal financial or accounting officer of the Company (or such
other officers as are acceptable to the Purchaser), to the effect set
forth in this Section 6(f) and that the Company shall not have failed
at or prior to the Closing Date to
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have performed or complied in all material respects with any of its
agreements herein contained and required to be performed or complied
with by it hereunder at or prior to the Closing Date.
(g) Prior to the offering of the Purchased Shares, the Purchased
Shares shall have been listed, subject to notice of issuance, on the
New York Stock Exchange.
(h) The Company shall have furnished or caused to be furnished
to the Purchaser such further certificates and documents as the
Purchaser shall have reasonably requested.
(i) There shall not have been any change after the date of this
Agreement in the certificate of incorporation or by-laws of the
Company adversely affecting the rights of the holders of the Common
Stock or any other action affecting the conversion price of the
Debentures.
(j) On the Closing Date, the Purchaser shall have received, in
form and substance satisfactory to the Purchaser, (i) letters, dated
the Closing Date, from the counsel referred to in Section 6(c) and
Xxxxxx Xxxxxx & Xxxxxxx to the effect that they reaffirm the
respective opinions set forth in Section 6(c) and 6(d), respectively,
and (ii) a letter from Coopers & Xxxxxxx L.L.C. to the effect that it
reaffirms its statements made in its letter furnished pursuant to
Section 6(e).
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are satisfactory
in form and substance to the Purchaser and the Purchaser's counsel.
Any certificate or document signed by any officer of the
Company and delivered to the Purchaser or to counsel for the Purchaser, shall
be deemed a representation and warranty by the Company to the Purchaser as to
the statements made therein.
If any condition specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement and all the Purchaser's obligations hereunder may be canceled by the
Purchaser by notifying the Company of such cancellation in writing or by
telegram at any time at or prior to the Redemption Date, and any such
can-
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cellation shall be without liability of any party to any other party, except
as provided in Sections 2(c)(i), 3(m), 3(n), 5 and 8(c).
7. Effective Date of Agreement. This Agreement shall become
effective when the Purchaser and the Company shall have received notification
of the effectiveness of the Registration Statement.
8. Termination of Agreement. (a) Prior to the time the
Company mails the Notice of Redemption, with respect to the Debentures, this
Agreement may be terminated by the Company by written notice to the
Purchaser, or by the Purchaser by written notice to the Company.
(b) The Purchaser shall also have the right to terminate this
Agreement by giving notice as hereinafter specified at any time at or prior to
the Redemption Date if prior to the Redemption Date (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market shall have been suspended or materially limited, (ii) a
general moratorium on commercial banking activities shall have been declared by
either federal or New York State authorities, or (iii) there shall have
occurred any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United States
is such as to make it, in the Purchaser's reasonable judgment, impracticable or
inadvisable to commence or continue the offering of the Shares to the public or
to enforce contracts for the resale of the Shares by the Purchaser.
(c) Any notice given pursuant to this Section 8 shall be
effective only upon receipt. If this Agreement is terminated pursuant to this
Section 8, such termination shall be without liability of any other party
except as provided in Sections 2(c)(i), 3(m), 3(n) and 5.
9. Miscellaneous. Except as otherwise provided in Sections 3,
7 and 8 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company, at the office of
the Company at 000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Facsimile:
(000) 000-0000, Attention: Xxxxx X. Xxxxxx, with a copy to Xxxxxx & Bird LLP,
One Atlantic Center, 0000 X. Xxxxxxxxx Xxxxxx,
00
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Xxxxxxx, Xxxxxxx 00000-0000, Facsimile: (000) 000-0000, Attention: X. Xxxxxx
Xxx; or (ii) if to Xxxxx Xxxxxx Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Facsimile: (000) 000-0000, Attention: Manager, Investment Banking
Division.
This Agreement has been and is made solely for the benefit of
the Purchaser, the Company, its directors and officers, and the other
controlling persons referred to in Section 5 hereof and their respective
successors and assigns, to the extent provided herein, and no other person
shall acquire or have any right under or by virtue of this Agreement. Neither
the term "successor" nor the term "successors and assigns" as used in this
Agreement shall include a purchaser from the Purchaser of any of the Shares in
his status as such purchaser.
10. Applicable Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts,
this Agreement shall not become effective unless at least one counterpart
hereof shall have been executed and delivered on behalf of each party hereto.
[Remainder of Page Intentionally Left Blank]
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Please confirm that the foregoing correctly sets forth the
agreement between the Company and the Purchaser.
Very truly yours,
XXXXXXXX'X, INC.
By:
------------------------------------
Name:
Title:
Confirmed as of the date first
above mentioned.
XXXXX XXXXXX INC.
By:
-----------------------------------------
Managing Director
