FAMILY GOLF CENTERS, INC.
3,500,000 Shares*
Common Stock
UNDERWRITING AGREEMENT
____ __, 1998
XXXXXXXXX & COMPANY, INC.
BANCAMERICA XXXXXXXXX XXXXXXXX
CIBC XXXXXXXXXXX CORP.
EVEREN SECURITIES, INC.
PRUDENTIAL SECURITIES INCORPORATED
As Representatives of the Several Underwriters
c/o Jefferies & Company, Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Family Golf Centers, Inc., a Delaware corporation (the "Company")
hereby confirms its agreement with the underwriters named in Schedule I hereto
(the "Underwriters"), for which you are acting as representatives (the
"Representatives"), with respect to the sale by the Company and the purchase by
the Underwriters of 3,500,000 shares (the "Firm Shares") of the Company's
Common Stock, $.01 par value (the "Common Stock"). The Company has also agreed
to sell up to an aggregate of 525,000 shares (the "Additional Shares") of
Common Stock to cover over-allotments, if any. The Firm Shares and the
Additional Shares are hereinafter collectively referred to as the "Shares."
You have advised us that, subject to the terms and conditions herein
contained, you desire to purchase the Firm Shares and that you propose to make
a public offering of the Firm Shares as soon as you deem advisable after the
Registration Statement referred to below becomes effective.
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* Plus an option to purchase from the Company up to 525,000 Additional
Shares to cover over- allotments.
The terms that follow, when used in this Agreement, shall have the
meanings indicated. "Preliminary Prospectus" shall mean each prospectus subject
to completion included in the Company's registration statement on Form S-3
referred to in Section below or any amendment or post-effective amendment
thereto (including the prospectus subject to completion included in the
Registration Statement (as defined below) on the date that the Registration
Statement becomes effective (the "Effective Date") that omits Rule 430A
Information (as defined below)). "Registration Statement" shall mean the
registration statement referred to in Section below, including all financial
statement schedules and exhibits, as amended at the Representation Date (as
defined in Section 1(a) hereof) (or, if not effective at the Representation
Date, in the form in which it shall become effective) and, if any
post-effective amendment thereto becomes effective prior to the Closing Date
(as defined in Section hereof), shall also mean such registration statement as
so amended. The term "Registration Statement" shall include Rule 430A
Information deemed to be included therein at the Effective Date as provided by
Rule 430A (as defined below). "Prospectus" shall mean (x) if the Company relies
on Rule 434 under the Securities Act of 1933, as amended (the "Act"), the Term
Sheet (as defined below) relating to the Shares that is first filed pursuant to
Rule 424(b)(7) under the Act, together with the Preliminary Prospectus
identified therein that the Term Sheet supplements, or (y) if the Company does
not rely on Rule 434 under the Act, the prospectus first filed with the
Securities and Exchange Commission (the "Commission") pursuant to Rule 424(b)
under the Act, or, if no prospectus is required to be filed pursuant to Rule
424(b) under the Act, the prospectus included in the Registration Statement.
"Term Sheet" shall mean any term sheet that satisfies the requirements of Rule
434 under the Act. "Rule 158," "Rule 424," "Rule 434" and "Rule 430A" refer to
such rules under the Act (the rules and regulations under the Act, the "Act
Regulations"). "Rule 430A Information" means information with respect to the
Shares and the offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. For purposes of the
representations and warranties contained herein, to the extent reference is
made to the Prospectus and at the relevant time the Prospectus is not yet in
existence, such reference shall be deemed to be to the most recent Preliminary
Prospectus. For purposes of this Agreement, all references to the Registration
Statement, Prospectus, Preliminary Prospectus or Term Sheet or to any amendment
or supplement to any of the foregoing shall be deemed to include (i) the copy
filed with the Commission pursuant to its Electronic Data Gathering Analysis
and Retrieval system ("XXXXX") and (ii) any information incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with,
each of the Underwriters as of the date hereof (such date being referred to as
the "Representation Date"), as follows:
(i) The Company meets the requirements for use of
Form S-3 under the Act and has filed with the Commission a registration
statement (Registration No. 333-____) on such form, including a prospectus
subject to completion, for the registration under the Act of the offering and
sale of the Shares. The Company may
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have filed one or more amendments thereto, including the related prospectus
subject to completion, each of which has previously been furnished to the
Representatives. After the execution of this Agreement, the Company will file
with the Commission either (A) prior to effectiveness of such registration
statement, a further amendment to such registration statement (including a form
of prospectus), a copy of which amendment has been furnished to and approved by
the Representatives prior to the execution of this Agreement, or (B) after
effectiveness of such registration statement, either (1) if the Company relies
on Rule 434 under the Act, a Term Sheet relating to the Shares that shall
identify the Preliminary Prospectus that it supplements containing such
information as is required or permitted by Rules 434, 430A and 424(b) under the
Act or (2) if the Company does not rely on Rule 434 under the Act, a prospectus
in the form most recently included in an amendment to such registration
statement (or, if no amendment shall have been filed, in such registration
statement) in accordance with Rules 430A and 424(b) of the Act Regulations and
as have been provided to and approved by the Representatives prior to execution
of this Agreement.
(ii) Neither the Commission nor any "blue sky" or
securities authority of any jurisdiction in which the Shares have been offered
has issued any order preventing or suspending the use of any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto. When any
Preliminary Prospectus was filed with the Commission it (A) complied in all
material respects with the applicable requirements of the Act and the Act
Regulations and (B) did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. On the Effective Date, the Representation
Date and each Closing Date, the Registration Statement did and will, and when
the Prospectus or any Term Sheet that is a part thereof is first filed (if
required) in accordance with Rule 424(b) and on the Representation Date and
each Closing Date, the Prospectus will, comply in all material respects with
the applicable requirements of the Act and the Act Regulations; on the
Effective Date, the Representation Date and each Closing Date, the Registration
Statement did not and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading; on the Effective Date,
the Representation Date and each Closing Date, and on the date of any filing
pursuant to Rule 424(b), the Prospectus or any Term Sheet that is a part
thereof did not and will not include 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; and each Preliminary Prospectus and the Prospectus delivered to the
Underwriters for use in connection with the offering of the Shares will, at the
time of such delivery, be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T under the Act; provided, that the Company makes no
representations or warranties as to the information provided in writing to the
Company by or on behalf of the Underwriters through the Representatives
expressly for use in any Preliminary Prospectus, the Registration Statement or
the Prospectus, and the Company agrees that the only
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information provided in writing by or on behalf of Underwriters to the Company
expressly for use in any Preliminary Prospectus, the Registration Statement or
the Prospectus is that information contained in the last paragraph on the cover
page of the Prospectus, the stabilization legends on the inside front cover
page of the Prospectus, the table of Underwriters set forth under the caption
"Underwriting" in the Prospectus and the amounts of the selling concession and
reallowance set forth in the Prospectus.
(iii) The documents incorporated by reference in the
Registration Statement, Preliminary Prospectus and Prospectus pursuant to Item
12 of Form S-3 under the Act, when they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the rules and regulations of the Commission thereunder, and, when
read together with the other information in the Registration Statement,
Preliminary Prospectus and Prospectus, none of such documents 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, in
light of the circumstances under which they were made, not misleading; since
January 1, 1997, the Company has timely filed all documents with the Commission
which were required to be filed under the Exchange Act and the rules and
regulations of the Commission thereunder on or prior to the date hereof.
(iv) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware,
with all requisite 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 qualified to conduct its business and
is in good standing in each jurisdiction or place where the nature or location
of its properties (owned or leased) or the conduct of its business requires
such qualification, except where the failure so to qualify would not have an
adverse effect on the condition (financial or other), business, properties,
prospects, net worth or results of operations of the Company or any of the
Subsidiaries (as hereinafter defined) that is or would be, singly or in the
aggregate, material to the Company and the Subsidiaries taken as a whole,
whether or not occurring in the ordinary course of business (a "Material
Adverse Effect").
(v) The only subsidiaries (as defined in the Act
Regulations) of the Company are the subsidiaries listed on Schedule 1(a)(v) to
this Agreement (individually, a "Subsidiary" and collectively, the
"Subsidiaries"). Each of the Subsidiaries is a corporation duly incorporated,
validly existing and in good standing in the jurisdiction of its incorporation
with all requisite 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 qualified to conduct its business and
is in good standing in each jurisdiction or place where the nature or location
of its properties (owned or leased) or the conduct of its business requires
such qualification, except where the failure to so qualify would not have a
Material Adverse Effect.
(vi) Each of the Company and each Subsidiary
possesses all authorizations, approvals, orders, licenses, certificates,
franchises and permits of and
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from, and have made all declarations and filings with, all regulatory or
governmental officials, bodies and tribunals ("Permits") to own, lease or
operate their respective properties and to conduct their respective businesses
described in the Registration Statement and the Prospectus, except where
failure to have obtained or made the same would not have a Material Adverse
Effect, and neither the Company nor any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
Permits. Except as described in the Registration Statement and Prospectus, each
of the Company and each Subsidiary has fulfilled and performed all its current
material obligations with respect to such Permits and no event has occurred
that allows, or after notice or lapse of time, or both, would allow, revocation
or termination thereof or result in any other material impairment of the rights
of the holder of any such Permit and such Permits contain no restrictions that
are materially burdensome to the Company or any of the Subsidiaries; and the
Company and each of the Subsidiaries are in compliance with all applicable
laws, rules, regulations, orders and consents, the violation of which would
have a Material Adverse Effect. The property and business of the Company and
the Subsidiaries conform in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(vii) All of the Company's issued and outstanding
capital stock has been duly authorized, validly issued and is fully paid and
nonassessable, and the Common Stock and the capitalization of the Company
conform to the descriptions thereof and the statements made with respect
thereto in the Registration Statement and the Prospectus as of the date set
forth therein. None of the issued shares of Common Stock have been issued in
violation of any preemptive or other rights to subscribe for or purchase shares
of capital stock of the Company. There are no outstanding securities
convertible into or exchangeable for, and no outstanding options, warrants or
other rights to purchase, any shares of the capital stock of the Company, nor
any agreements or commitments to issue any of the same, except as described in
the Registration Statement and the Prospectus, and there are no preemptive or
other rights to subscribe for or to purchase, and no restrictions upon the
voting or transfer of, any capital stock of the Company pursuant to the
Company's certificate of incorporation or by-laws or any agreement or other
instrument to which the Company is a party. All offers and sales of the
Company's capital stock prior to the date hereof were at all relevant times
duly registered or exempt from the registration requirements of the Act, and
were duly registered or the subject of an available exemption from the
registration requirements of the applicable state securities or blue sky laws.
(viii) All the outstanding shares of capital stock
of each Subsidiary have been duly authorized and validly issued and are fully
paid and nonassessable, and, except as otherwise set forth in the Registration
Statement and the Prospectus, all outstanding shares of capital stock of such
Subsidiaries are owned of record and beneficially by the Company, either
directly or through one of the other Subsidiaries, free and clear of any
security interests, liens, encumbrances, equities or other claims except that
shares of capital stock of certain Subsidiaries are pledged to secure loans.
There are no outstanding rights, warrants or options to acquire, or instruments
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convertible into or exchangeable for, any shares of capital stock or other
equity interest in any Subsidiary.
(ix) Each of the Company and each Subsidiary has
good and marketable title to, and is possessed of, each property, right,
interest or estate constituting the properties and assets described in the
Registration Statement and the Prospectus as owned by it, free and clear of all
liens, charges, encumbrances and restrictions, except such as are described in
the Registration Statement and the Prospectus or such as are not burdensome and
do not interfere with the use or proposed use of the property or the conduct of
the business of the Company or any Subsidiary in a manner that is or would be
material to the business of the Company and the Subsidiaries taken as a whole.
Each of the Company and each Subsidiary has valid, subsisting and enforceable
leases for the properties described in the Registration Statement and the
Prospectus as leased by it and no event has occurred which, with the passage of
time or the giving of notice or both, would cause a material breach of, or
default under any such lease.
(x) The Company has all requisite power, authority,
authorizations, approvals, orders, licenses, certificates and permits to enter
into this Agreement and to carry out the provisions and conditions hereof,
including the issuance and delivery of the Shares to the Underwriters as
provided herein. This Agreement has been duly and validly authorized by the
Company, and this Agreement has been duly executed and delivered by the Company
and constitutes a legal, valid and binding agreement of the Company,
enforceable against it in accordance with its terms, except to the extent
rights to indemnity hereunder may be limited by Federal or state securities
laws or public policy underlying such laws and except to the extent the
enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by equitable principles.
(xi) Each of the Company and each Subsidiary owns,
or possesses adequate rights to use, all trademarks, service marks, trade
names, licenses, copyrights and other rights necessary for the conduct of its
business as described in the Registration Statement and the Prospectus, and
neither the Company nor any of the Subsidiaries has received a notice, or knows
of any basis, of any conflict with the asserted rights of others in any such
respect that could have a Material Adverse Effect, except as described in the
Registration Statement and the Prospectus.
(xii) The Shares to be sold by the Company have been
duly and validly authorized for issuance by the Company and the Company has the
corporate power and authority to issue, sell and deliver the Firm Shares; and,
when the Shares are issued and delivered against payment therefor as provided
by this Agreement, the Shares will have been validly issued, fully paid and
nonassessable, and the issuance of such Shares will not be subject to any
preemptive or similar rights. All corporate action required to be taken by the
stockholders or the Board of Directors of the Company for the authorization,
issuance and sale of the Shares has been duly and validly taken.
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(xiii) Each of Xxxxxxx X. Xxxxxx & Company, LLP,
KPMG, and Feldman, Gutterman, Xxxxxxxx & Co., whose reports are filed with the
Commission as part of the Registration Statement, are independent certified
public accountants with respect to the Company and the Subsidiaries, under the
meaning of and as required by the Act and the Act Regulations.
(xiv) The consolidated financial statements and
related schedules and notes included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the financial
position of the Company and the Subsidiaries, on the basis stated in the
Registration Statement, as of the respective dates thereof and the results
of operations and cash flows of the Company and the Subsidiaries, for the
respective periods covered thereby, all in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the entire period involved, except as otherwise disclosed in the Registration
Statement and the Prospectus. The selected consolidated financial information
included under the caption "Selected Financial Data" in the Prospectus
presents fairly the information shown therein and has been compiled on a
basis consistent with that of the audited consolidated financial statements
of the Company included therein. The pro forma financial statements and other
pro forma financial information included in the Registration Statement and
the Prospectus have been prepared in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X promulgated
by the Commission and present fairly, in all material respects, the information
shown therein; the assumptions used in the preparation of the pro forma
financial statements and other pro forma financial information and included
in the Registration Statement and Prospectus are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein. No other financial statements or
schedules of the Company and its Subsidiaries are required by the Act or the
Act Regulations to be included in the Registration Statement or Prospectus.
(xv) Each of the Company and each Subsidiary
maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance with
management's general or specific authorizations; (B) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability;
(C) access to assets is permitted only in accordance with management's general
or specific authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(xvi) Each of the Company and each Subsidiary
maintains insurance covering its properties, operations, personnel and
businesses. Such insurance insures against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged. Neither the Company nor any Subsidiary has been refused any insurance
coverage sought or applied for; and neither the Company nor any Subsidiary has
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
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coverage from similar insurers as may be necessary to continue its business at
a cost that would not have a Material Adverse Effect. All such insurance is
outstanding and duly in force on the date hereof.
(xvii) Except as set forth in the Registration
Statement and the Prospectus, the Company and the Subsidiaries are in
compliance with all Federal, state, local or foreign laws or regulations
relating to pollution or protection of human health or the environment
("Environmental Laws"), except where the failure to be in compliance would not
have a Material Adverse Effect. Except as set forth in the Registration
Statement and the Prospectus, neither the Company nor any of the Subsidiaries
has authorized, conducted or has knowledge of the generation, transportation,
storage, use, treatment, disposal or release of any hazardous substance,
hazardous waste, hazardous material, hazardous constituent, toxic substance,
pollutant, contaminant, petroleum product, natural gas, liquified gas or
synthetic gas, defined or regulated under any Environmental Law on, in or under
any property currently leased or owned or by any means controlled by the
Company or any of the Subsidiaries (the "Real Property") in violation of any
applicable law, except for any violation which would not have a Material
Adverse Effect; there is no pending or, to the Company's knowledge, threatened
claim, action, litigation or any administrative agency proceeding involving the
Company or any of the Subsidiaries or their respective properties, nor has the
Company or any of the Subsidiaries received any written notice, or any oral
notice to any executive officer of the Company or any other employee
responsible for receipt of any such notice, from any governmental entity or
third party, that (A) alleges a violation of any Environmental Laws by the
Company or any of the Subsidiaries or any person or entity whose liability for
a violation of an Environmental Law the Company or any Subsidiary has retained
or assumed either contractually or by operation of law, which liability or
violation could be reasonably expected to have a Material Adverse Effect; (B)
alleges the Company or any of the Subsidiaries is a liable party under the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
ss. 9601 et seq., or any state superfund law; (C) alleges possible
contamination of the environment by the Company or any of the Subsidiaries; or
(D) alleges possible contamination of the Real Property.
(xviii) Neither the Company nor any of the
Subsidiaries is in violation of its respective charter or by-laws. Neither the
Company nor any Subsidiary is, nor with the passage of time or the giving of
notice or both would be, in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries, or of any judgment, order or decree of any court or governmental
agency or body or of any arbitrator having jurisdiction over the Company or any
of the Subsidiaries which would have a Material Adverse Effect, or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any mortgage, loan agreement, note, bond, debenture,
credit agreement or any other evidence of indebtedness or in any agreement,
contract, indenture, lease or other instrument to which the Company or any of
the Subsidiaries is a party or by which the Company or any of the Subsidiaries
is bound, or to which any of the property or assets of the Company or any of
the Subsidiaries is subject, the
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effect of which violation or default in performance or observance would have a
Material Adverse Effect.
(xix) There is no action, suit or proceeding before
or by any court, arbitrator or governmental agency or body pending or, to the
Company's knowledge, threatened, against the Company or any of the
Subsidiaries, or to which any of their respective properties is subject, (A)
that are required to be described in the Registration Statement or the
Prospectus but are not described as required or (B) that, if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
There is no agreement, contract, indenture, lease or other document or
instrument that is required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement that
is not described or filed or incorporated by reference as required. All such
agreements to which the Company or any of its Subsidiaries is a party have been
duly authorized, executed and delivered by the Company or a Subsidiary,
constitute valid and binding agreements of the Company or a Subsidiary, and are
enforceable against the Company or a Subsidiary in accordance with the terms
thereof.
(xx) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, except
as otherwise stated therein, (A) neither the Company nor any of the
Subsidiaries (1) has issued any securities other than in connection with the
exercise of any outstanding options or warrants, (2) incurred any material
liability or obligation, direct or contingent, for borrowed money, (3) entered
into any transaction, not in the ordinary course of business, that is material
to the Company and the Subsidiaries taken as a whole, (4) entered into any
transaction with an affiliate of the Company (as the term "affiliate" is
defined in Rule 405 promulgated by the Commission pursuant to the Act), which
would otherwise be required to be disclosed in the Registration Statement and
the Prospectus, or (5) declared or paid any dividend on its capital stock or
made any other distribution to its equity holders, (B) there has not been any
material change in the capital stock or other equity, or material increase in
the short-term debt or long-term debt, of the Company or any of the
Subsidiaries and (C) there has been no change or development with respect to
the condition (financial or otherwise), business, properties, prospects, net
worth or results of operations of the Company or any of the Subsidiaries that
could have a Material Adverse Effect.
(xxi) Neither the execution, delivery or performance
of this Agreement, the offer, issuance, sale or delivery of the Shares, nor the
consummation of the other transactions contemplated hereby (A) requires the
consent, approval, authorization or order of any court or governmental agency
or body, except such as have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Shares by the Underwriters or such as may be
required by the National Association of Securities Dealers, Inc. (the "NASD")
and such other approvals as have been obtained, (B) will conflict with, result
in a breach or violation of, or constitute a default under the terms of any
agreement, contract, indenture, lease or other instrument to which the Company
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or any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, or the charter or by-laws of the Company or
any Subsidiary; or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of the
Subsidiaries or an acceleration of indebtedness pursuant to the terms of any
agreement or instrument to which any of them is a party or by which any of them
may be bound or to which any of the property or assets of any of them is
subject, or (C) will conflict with or violate any law, statute or regulation,
or any judgment, order, consent or memorandum of understanding applicable to
the Company or any Subsidiary of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the Company or
any of the Subsidiaries or their respective properties.
(xxii) The Company has not distributed and, prior to
the later to occur of (A) the Closing Date or (B) completion of the
distribution of the Shares, will not distribute without the prior written
consent of Jefferies & Company, Inc. ("Jefferies") any offering material in
connection with the offering and sale of the Shares other than the Registration
Statement, any Preliminary Prospectus, the Prospectus or other materials, if
any, permitted by the Act and the Act Regulations.
(xxiii) Neither the Company nor any Subsidiary nor
any employee or agent of the Company or any Subsidiary has made any payment of
funds of the Company or any Subsidiary, or received or retained any funds, in
violation of any law, rule or regulation, or which payment, receipt or
retention of funds is of a character required to be disclosed in the
Registration Statement or the Prospectus.
(xxiv) Neither the Company nor any of the
Subsidiaries is involved in any labor dispute and, to the knowledge of the
Company, no such dispute is threatened.
(xxv) The Company and each of the Subsidiaries have
filed (or have obtained extensions thereto) all Federal, state and local tax
returns that are required to be filed (other than returns with respect to which
failure to so file would not have a Material Adverse Effect), which returns are
compete and correct in all material respects and have paid all taxes shown on
such returns and all assessments received by them with respect thereto to the
extent that the same have become due, except those taxes that are being
contested or protested in good faith by the Company or its Subsidiaries and as
to which any reserves required under generally accepted accounting principles
have been established; and the Company has no knowledge of any tax deficiency
which has been or might be asserted or threatened against the Company or any
Subsidiary which could have a Material Adverse Effect.
(xxvi) Except for the shares of capital stock of
each of the Subsidiaries, neither the Company nor any of the Subsidiaries owns
any share of stock or any other securities of any corporation or has any equity
interest in any firm, partnership, association or other entity other than as
reflected in the consolidated financial statements included in the Registration
Statement and the Prospectus.
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(xxvii) No holder of any security of the Company has
the right (other than a right which has been waived in writing or complied
with) to have any security owned by such holder included in the Registration
Statement and, except as described in the Registration Statement and the
Prospectus, no holder of any security of the Company has the right to demand
registration of any security owned by such holder during the period ending 12
months after the date of the Prospectus.
(xxviii) Neither the Company nor any Subsidiary or
their respective officers, directors, employees or agents have taken or will
take, directly or indirectly, (A) any action designed to cause or to result in,
or that has constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares, or (B) since the filing of the
Registration Statement (1) sold, bid for, purchased or paid anyone any
compensation for soliciting purchases of, the Shares or (2) paid or agreed to
pay any person any compensation for soliciting another to purchase any
securities of the Company.
(xxix) As of the date of the Prospectus, neither the
Company nor any of the Subsidiaries is currently planning any probable
acquisitions for which disclosure of pro forma financial information would be
required by the Act.
(xxx) The Common Stock currently outstanding is duly
authorized for trading on the Nasdaq National Market and, prior to the Closing
Date, the Shares will be duly authorized for trading on the Nasdaq National
Market.
(xxxi) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, and is
not subject to registration under such act.
(xxxii) The Company has obtained from each of its
officers and directors a written agreement (the "Lock-Up Agreements"), in form
and substance satisfactory to counsel for the Underwriters, that, for a period
of 90 days from the date of the Prospectus, he or she will not, without
Jefferies' prior written consent, offer, sell, contract to sell, grant any
option for the sale of, or otherwise dispose of, directly or indirectly, any
shares of Common Stock or any security convertible into, or exchangeable or
exercisable for, shares of Common Stock or other securities of the Company.
(xxxiii) To the Company's knowledge, no officer,
director or beneficial owner of 5% or more of the Common Stock of the Company
has any affiliation or association with the National Association of Securities
Dealers, Inc. (the "NASD") or any member thereof.
-11-
(b) Any certificate signed by any officer of the Company
delivered to the Representatives or to counsel for the Underwriters pursuant to
the terms of this Agreement shall be deemed a representation and warranty by
the Company to the Underwriters as to the matters covered thereby.
2. Sale and Delivery to the Underwriters; Closing.
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $_____ per share (the
"Initial Price"), the number of Firm Shares set forth opposite such
Underwriter's name in Schedule I hereto.
(b) The Company grants to the Underwriters an option to
purchase all or any part of the Additional Shares at the Initial Price.
Additional Shares shall be purchased from the Company, for the accounts of the
Underwriters in proportion to the number of Firm Shares set forth in Schedule I
hereto opposite the name of such Underwriter. Such option may be exercised only
to cover over-allotments in the sale of the Firm Shares by the Underwriters and
may be exercised in whole or in part at any time and from time to time within
30 days after the date of this Agreement, in each case upon written or
facsimile notice, or verbal or telephonic notice confirmed by written or
telegraphic notice, by the Underwriters to the Company no later than 12:00
noon, New York City time, on the business day before the Firm Shares Closing
Date (as hereinafter defined) or at least two business days before the
Additional Shares Closing Date (as hereinafter defined), as the case may be,
setting forth the number of Additional Shares to be purchased and the time and
date (if other than the Firm Shares Closing Date) of such purchase.
(c) Payment of the purchase price for, and delivery of, the
Firm Shares to be purchased by the Underwriters shall be made at the offices of
Jefferies & Company, 000 Xxxxx Xxxxxx, 0xx Xxxxx, Attention: Syndicate
Operations, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed
upon by the Representatives and the Company at 10:00 A.M. on the third (fourth,
if the pricing occurred after 4:30 p.m. on any given day) business day after
the date of this Agreement, or such other time not later than ten business days
after such date as shall be agreed upon by the Representatives and the Company
(such time and date of payment and delivery being herein called the "Firm
Shares Closing Date"). Payment shall be made to the Company by wire transfer
and payable in immediately available funds to the order of the Company against
delivery to the Underwriters of the Firm Shares.
(d) Payment of the purchase price for, and delivery of, the
Additional Shares to be purchased by the Underwriters shall be made at the
office as set forth above or at such other place as shall be agreed upon by the
Representatives and the Company at the time and on the date (which may be the
same as, but in no event shall be earlier than, the Firm Shares Closing Date)
specified in the notice referred to in Section hereof (such time and date of
delivery and payment are called the
-12-
"Additional Shares Closing Date"). The Firm Shares Closing Date and the
Additional Shares Closing Date are called, individually, a "Closing Date" and
together, the "Closing Dates". Payment shall be made to the Company by wire
transfer and payable in immediately available funds to the order of the
Company.
(e) The Shares shall be in such denominations and registered
in such names as the Representatives may request in writing at least two
business days before the Firm Shares Closing Date or, in the case of the
Additional Shares, on the day of notice of exercise of the option as described
in Section hereof. The Shares will be made available for examination and
packaging by the Underwriters not later than 1:00 P.M. on the last business day
prior to the Firm Shares Closing Date (or the Additional Shares Closing Date in
the case of the Additional Shares) at such place as is designated by the
Representatives. If the Representatives so elect, delivery of the Shares may be
made by credit through full FAST transfer to the accounts of The Depository
Trust Company designated by the Representatives.
3. Covenants.
(a) The Company covenants with each Underwriter as follows:
(i) The Company will use its best efforts to cause
the Registration Statement, if not effective at the Representation Date, and
any amendment thereto, to become effective, as promptly as possible after the
filing thereof. The Company will not file any amendment to the Registration
Statement or amendment or supplement to the Prospectus to which the
Representatives shall reasonably object in writing after a reasonable
opportunity to review such amendment or supplement. Subject to the foregoing
sentences in this clause , if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus or any Term Sheet
that constitutes a part thereof or supplement to the Prospectus is otherwise
required under Rule 424(b), the Company will cause the Prospectus or any Term
Sheet that constitutes a part thereof, properly completed, or such supplement
thereto, to be filed with the Commission pursuant to Rule 434 and the
applicable paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely filing. The
Company will promptly advise the Representatives (A) when the Registration
Statement, if not effective at the Representation Date, and any amendment
thereto, shall have become effective, (B) when the Prospectus or any Term Sheet
that constitutes a part thereof, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to Rule 434 and 424(b), (C)
when any amendment to the Registration Statement shall have been filed or
become effective, (D) of any request by the Commission for any amendment of or
supplement to the Registration Statement or any Prospectus or for any
additional information, (E) of the receipt by the Company of any notification
of, or if the Company otherwise has knowledge of, the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose,
(F) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for
-13-
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose and (G) when any document shall have been filed by the Company
under the Act or the Exchange Act or under the rules and regulations
promulgated thereunder. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as possible
the lifting thereof.
(ii) If, at any time when a prospectus relating to
the Shares is required to be delivered under the Act or the Act Regulations,
any event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in the light
of the circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or amend or supplement the
Prospectus to comply with the Act or the Act Regulations, the Company promptly
will prepare and file with the Commission, at the Company's expense, subject to
the second sentence of Section hereof, an amendment or supplement which will
correct such statement or omission or effect such compliance. Neither your
consent to, nor your delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(iii) If at any time within the nine-month period
referred to in Section 10(a)(3) of the Act during which a prospectus relating
to the Shares is required to be delivered under the Act any event occurs, as a
result of which the Prospectus, including any amendments or supplements, would
include an 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
not misleading, or if it is necessary at any time to amend the Prospectus,
including any amendments or supplements, to comply with the Act or the Act
Regulations, the Company will promptly advise the Underwriters thereof and will
promptly prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an amendment or
supplement which will effect such compliance and will use its best efforts to
cause the same to become effective as soon as possible; and, in case any
Underwriter is required to deliver a prospectus after such nine-month period,
the Company upon request, but at the expense of such Underwriter, will promptly
prepare such amendment or amendments to the Registration Statement and such
Prospectus or Prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act.
(iv) During such period as a prospectus is required
by law to be delivered in connection with sales by an Underwriter or dealer,
the Company, at its expense, but only for the nine-month period referred to in
Section 10(a)(3) of the Act, will furnish to each Underwriter or mail to its
order copies of the Registration Statement, the Prospectus, the Preliminary
Prospectus and all amendments and supplements to any such documents in each
case as soon as available and in such quantities as such Underwriter may
request, for the purposes contemplated by the Act.
(v) The Company consents to the use of the
Prospectus in accordance with the provisions of the Act and with the securities
or blue sky laws of
-14-
the jurisdictions in which the Shares are offered by the Underwriters
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 the sales
by any Underwriter or dealer. The Company will comply with all requirements
imposed upon it by the Act, as now and hereafter amended, so far as necessary
to permit the continuance of sales of or dealing in the Shares in accordance
with the provisions hereof and the Prospectus.
(vi) As soon as practicable, the Company will make
generally available to its security holders and to the Underwriters a
consolidated earnings statement or statements of the Company and the
Subsidiaries covering a twelve-month period beginning with the first full
calendar quarter following the Effective Date which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 thereunder.
(vii) The Company will, without charge, furnish (A)
to the Representatives, three signed copies of the Registration Statement
(including exhibits thereto and upon request, all documents incorporated by
reference therein), (B) to each Underwriter, a conformed copy of such
Registration Statement (without exhibits thereto) and (C) so long as delivery
of a prospectus by an Underwriter or dealer may be required by the Act, as many
copies of the Prospectus and all amendments and supplements thereto as the
Representatives may reasonably request. The copies of the Registration
Statement, and each amendment thereto, and the copies of the Prospectus, and
any amendments or supplements thereto, furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(viii) During the period of five years hereafter the
Company will furnish to the Representatives as soon as practicable after the
end of each fiscal year, a copy of its annual report to stockholders for such
year; and the Company will furnish to the Representatives (i) as soon as
available, a copy of each report or definitive proxy statement of the Company
filed with the Commission under the Exchange Act or mailed to stockholders, and
(ii) from time to time, such other information concerning the Company as the
Representatives may reasonably request, provided that prior to the Company's
furnishing any such other information that is nonpublic you shall enter into
such agreement respecting the confidentiality thereof as the Company may
reasonably request.
(ix) The Company will apply the net proceeds from
the offering and sale of the Shares to be sold by the Company in accordance
with the description set forth in the "Use of Proceeds" section of the
Prospectus.
(x) The Company will cooperate with the Underwriters
and their counsel in connection with endeavoring to obtain and maintain the
qualification or registration, or exemption from qualification, of the Shares
for offer and sale under the applicable securities laws of such states and
other jurisdictions of the United States as the Underwriters may designate;
provided, that in no event shall the Company be
-15-
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to taxation or general
service of process in any jurisdiction where it is not now so subject.
(xi) The Company will not at any time, directly or
indirectly (A) take any action designed to cause or result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Shares, or (B) (1) sell, bid for,
purchase or pay anyone any compensation for soliciting purchases of, the Shares
or (2) pay or agree to pay any person any compensation for soliciting another
to purchase any other securities of the Company.
(xii) The Company will comply with all the
provisions of any undertakings contained in the Registration Statement.
(xiii) The Company will not, directly or indirectly,
for a period of 90 days following the date of the Prospectus, without the prior
written consent of Jefferies, offer, sell, contract to sell, or grant any
option to purchase or otherwise dispose of, any shares of Common Stock or any
securities convertible into, or exchangeable for, shares of Common Stock, or
register for sale under the Act any shares of Common Stock or any securities
convertible into, or exchangeable for, shares of Common Stock, other than (A)
pursuant to any employee stock option plan of the Company in effect at the
Representation Date, or (B) upon exercise of any options or warrants
outstanding at the Representation Date, or (C) in connection with acquisitions
by the Company, up to a maximum of _________ shares; provided, however, that in
no case shall the Company offer, sell, contract to sell, or grant any option to
purchase or otherwise dispose of in any one acquisition more than 5% of the
Company's outstanding capital stock on a fully diluted basis.
(xiv) The Company shall cause the Shares to be
quoted on the Nasdaq National Market and shall use its best efforts to maintain
such trading while the Shares are outstanding.
(xv) Until the expiration of the 90-day period
following the date of the Prospectus, the Company shall not instruct its
transfer agent and registrar to remove the "Stop Transfer Order" placed on the
transferability of securities of the Company owned by its officers and
directors without the prior written consent of Jefferies.
4. Payment of Expenses.
(a) The Company covenants and agrees with the Underwriters
that the Company will pay (directly or by reimbursement): (i) the fees,
disbursements and expenses of counsel and accountants for the Company, and all
other expenses, in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus, the Prospectus and any
amendments or supplements thereto,
-16-
and the furnishing of copies thereof, including charges for mailing, air
freight and delivery and counting and packaging thereof to the Underwriters and
dealers; (ii) the cost of printing this Agreement, the Agreement Among
Underwriters, the Selected Dealer Agreement, communications with the
Underwriters and selling group and the Preliminary and Supplemental Blue Sky
Survey, if any, and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection
with the qualification of the Shares for offering and sale under securities
laws as provided in Section 3(a) hereof, including filing and registration fees
and the fees, disbursements and expenses for counsel for the Underwriters in
connection with such qualification and in connection with Blue Sky surveys or
similar advice with respect to sales; (iv) the filing fees incident to, and the
fees and disbursements of counsel for the Underwriters in connection with,
securing any required review by the NASD of the terms of the sale of the
Shares; (v) all fees and expenses in connection with quotation of the Shares on
the Nasdaq National Market; (vi) the cost of publication of "tombstone"
advertisements with respect to the offering; (vii) the cost of at least five
sets of bound volumes of the Registration Statement and all related materials
to the individuals designated by the Representatives; and (viii) all other
costs and expenses incident to the performance of the obligations of the
Company under this Agreement which are not otherwise specifically provided for
in this Section 4, including the fees of the Company's transfer agent and
registrar, the cost of any stock issue or transfer taxes on sales of the Shares
to the Underwriters, the cost of the Company's personnel and other internal
costs, the cost of printing and engraving the certificates representing the
Shares and all expenses and taxes incident to the sale and delivery of the
Shares to be sold by the Company to the Underwriters or the Representatives
hereunder.
(b) If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 or 8 hereof, the Company shall
reimburse the Representatives and the other Underwriters for all of their
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
5. Conditions of the Underwriters' Obligation.
The obligation of the Underwriters to purchase the Shares
hereunder is subject to the continued accuracy of the representations and
warranties of the Company herein contained as of the date hereof and on each
Closing Date, to the accuracy of the statements of the Company made in any
certificate or certificates pursuant to the provisions hereof as of the date
hereof and on each Closing Date and to the performance by the Company of its
obligations hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective
not later than 5:30 P.M. on the date hereof, or at such later time and date as
may be approved by the Representatives and the Company and shall remain
effective at each Closing Date. No stop order suspending the effectiveness of
the Registration Statement shall have been issued under the Act or proceedings
therefor initiated or threatened by the Commission. No order suspending the
effectiveness of the Registration Statement or
-17-
the qualification or registration of the Shares under the securities or blue
sky laws of any jurisdiction shall be in effect or proceedings therefor
initiated or threatened by the Commission or the authorities of any such
jurisdiction. If the Company has elected to rely upon Rule 430A, the price of
the Shares and any price-related or other information previously omitted from
the effective Registration Statement pursuant to Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) within the
prescribed time period, and prior to the Firm Shares Closing Date, the Company
shall have provided evidence satisfactory to the Representatives of such timely
filing, or a post-effective amendment providing such information shall have
been promptly filed and declared effective in accordance with the requirement
of Rule 430A.
(b) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
occurred (i) any change, or any development involving a prospective change, in
or affecting the business, properties, prospects, condition (financial or
other) or results of operations of the Company or the Subsidiaries, taken as a
whole, which, in the judgment of the Representatives, materially affects the
market for the Shares or (ii) any material loss or interference with the
business or properties of the Company or any of the Subsidiaries from fire,
explosion, flood or other casualty, whether or not covered by insurance, or
from any labor dispute or any court or legislative or other governmental
action, order or decree, which is not set forth in the Registration Statement
and the Prospectus, if in the judgment of the Representatives any such
development makes it impracticable or inadvisable to proceed with completion of
the sale of and payment for the Shares.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall have been
no litigation or other proceeding instituted against the Company or any of the
Subsidiaries or any of their respective officers or directors in their
capacities as such, before or by any Federal, state or local court, commission,
regulatory body, administrative agency or other governmental body, domestic or
foreign, or arbitrator, in which litigation or proceeding an unfavorable
ruling, decision or finding would materially and adversely affect the business,
properties, business prospects, condition (financial or otherwise) or results
of operations of the Company and the Subsidiaries, taken as a whole.
(d) Each of the representations and warranties of the Company
contained herein shall be true and correct in all material respects at each
Closing Date, as if made at such Closing Date, and all covenants and agreements
contained herein to be performed on the part of the Company and all conditions
contained herein to be fulfilled or complied with by the Company at or prior to
each Closing Date, shall have been duly performed, fulfilled or complied with.
(e) Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP, counsel for
the Company, shall have furnished to the Underwriters their opinion,
satisfactory in form and substance to counsel for the Underwriters, dated the
Firm Shares Closing Date (and, if applicable, the Additional Shares Closing
Date), to the effect that:
-18-
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware with full corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Registration
Statement and the Prospectus, and is duly qualified to conduct its business and
is in good standing in each jurisdiction or place where the nature or location
of its properties (owned or leased) or the conduct of its business requires
such registration or qualification, except where the failure so to register or
qualify would not have a Material Adverse Effect.
(ii) Each Subsidiary has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
jurisdiction in which it is incorporated, 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
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature or location of its properties (owned or leased) or
the conduct of its business requires such registration or qualification, except
where the failure so to register or qualify would not have a Material Adverse
Effect.
(iii) All the outstanding shares of capital stock of
each Subsidiary have been duly authorized and validly issued and are fully paid
and nonassessable and all outstanding shares of capital stock of each
Subsidiary are owned of record and, to such counsel's knowledge, beneficially
by the Company, either directly or through one of the other Subsidiaries, free
and clear of any perfected security interests and, to such counsel's knowledge,
other security interests, liens, encumbrances, equities, other rights to
purchase or other claims, except that shares of capital stock of certain of the
Subsidiaries are pledged to secure loans.
(iv) There are no preemptive or other rights to
subscribe for or to purchase shares of capital stock of the Company pursuant to
any statute, the certificate of incorporation or by-laws of the Company or, to
such counsel's knowledge, any agreement or other instrument to which the
Company is a party as to which any person can successfully maintain an action,
suit or proceeding against the Company for violation of his or her preemptive
rights with respect to the issuance of any shares of capital stock of the
Company.
(v) To the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of the Subsidiaries required to be disclosed in the Prospectus that is
not disclosed in the Prospectus, and there is no contract or other document
required to be described in the Registration Statement or the Prospectus, or to
be filed as an exhibit, which is not described or filed as required.
(vi) All of the Company's issued and outstanding
capital stock has been duly authorized, validly issued, is fully paid and
nonassessable, has been issued in compliance with all applicable Federal
securities laws and the capitalization of the
-19-
Company conforms in all material respects to the descriptions thereof and the
statements made with respect thereto in the Registration Statement and the
Prospectus under the caption "Description of Capital Stock."
(vii) The Registration Statement has become
effective under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) have been made in the manner and
within the time period required by Rule 424(b); to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been instituted
or threatened, and the Registration Statement and the Prospectus (other than
the financial statements and other financial and statistical information
contained therein as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act and the
applicable Act Regulations.
(viii) The statements in the Registration Statement
and Prospectus, insofar as they are descriptions of contracts, agreements or
other legal documents, are accurate in all material respects.
(ix) This Agreement has been duly authorized,
executed and delivered by the Company, is a valid and binding agreement of the
Company, enforceable in accordance with its terms (except to the extent rights
to indemnity hereunder or thereunder may be limited by Federal or state
securities laws or public policy underlying such laws and except to the extent
the enforcement hereof or thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by equitable principles) and the Company has
full corporate power and authority to enter into this Agreement.
(x) No consent, approval, authorization or order of
any court or governmental agency or body of which such counsel has knowledge is
required for the consummation of the transactions contemplated hereby, except
such as have been obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Shares by the Underwriters or such as may be required by
the NASD (as to which such counsel need express no opinion) and such other
approvals (specified in such opinion) as have been obtained.
(xi) Neither the execution and delivery of this
Agreement, the issue and sale of the Shares, the consummation of any other of
the transactions herein contemplated, nor the fulfillment of the terms hereof,
will conflict with, or result in a breach or violation of, or constitute a
default under, or result in the creation or imposition of any lien, charge,
claim or encumbrance upon, any of the property or assets of the Company or any
of the Subsidiaries pursuant to (a) the terms of any agreement, contract,
indenture, lease or other instrument to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the Subsidiaries is
bound or to which any of the property or assets of the Company or any of its
Subsidiaries is subject, which is filed or incorporated by reference as an
exhibit to the
-20-
Registration Statement, filed or incorporated by reference as an
exhibit to any document which is itself incorporated by reference in the
Registration Statement or identified in writing to such counsel, (b) any law,
statute, rule, or regulation, or any judgment, order, consent or memorandum of
understanding known to such counsel of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
the Company or any of the Subsidiaries, or (c) the charter or by-laws of the
Company.
(xii) The Shares have been duly and validly
authorized by the Company for issuance, and the Company has full corporate
power and authority to issue, sell and deliver the Firm Shares; and, when the
Shares are issued and delivered against payment therefor as provided by this
Agreement, the Shares will have been validly issued and will be fully paid and
nonassessable, and the issuance of such Shares will not be subject to any
statutory preemptive rights or similar statutory rights or, to such counsel's
knowledge, any other preemptive or similar rights.
(xiii) The certificates for the Shares are in due
and proper form under Delaware law and the by-laws of the Company and conform
with the form of certificate duly authorized by the Board of Directors of the
Company.
(xiv) The Shares, when issued, will conform in all
material respects to the description thereof contained in the Registration
Statement and the Prospectus under the caption "Description of Capital Stock."
(xv) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or
subject to registration under such act.
(xvi) Except as set forth in the Registration
Statement and the Prospectus, to the knowledge of such counsel no holder of any
securities of the Company or any other person has the right, contractual or
otherwise, to cause the Company to sell or otherwise issue to such person, or
to permit such person to underwrite the sale of, any of the Shares or the right
to have any Common Stock or other securities of the Company included in the
Registration Statement or the right, as a result of the filing of the
Registration Statement, to require registration under the Act of any shares of
Common Stock or other securities of the Company that has not been waived or
lapsed.
In addition, such counsel shall also state that such counsel has
participated in conferences with representatives of the Underwriters, officers
and representatives of the Company and the Subsidiaries and representatives of
the independent certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the Prospectus and
related matters were discussed and that, although such counsel is not passing
upon and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus (except as set forth in Section 5(e)(vi)), on the basis of the
foregoing (relying as to materiality to a large extent upon officers and other
representatives of the Company), no facts have come to the attention of such
-21-
counsel which lead such counsel to believe that the Registration Statement at
the time it became effective or at the Representation Date and at the Firm
Shares Closing Date (and, if applicable, the Additional Shares 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
not misleading or that the Prospectus, at the Representation Date (unless the
term "Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Company for use in connection with the offering of the
Shares which differs from the Prospectus on file at the Commission at the
Representation Date, in which case at the time it is first provided to the
Underwriters for such use) or at the Firm Shares Closing Date (and, if
applicable, the Additional Shares Closing Date), included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, that such
counsel need not express any comment with respect to the financial statements,
supporting schedules or other financial and statistical data contained in the
Registration Statement or the Prospectus.
(f) Fulbright & Xxxxxxxx L.L.P., counsel for the
Underwriters, shall have furnished to the Underwriters an opinion with respect
to such matters as may be reasonably requested by the Underwriters, dated the
Firm Shares Closing Date (and, if applicable, the Additional Shares Closing
Date).
(g) The following conditions contained in clauses (A) through
(C) of this Section 5(g) shall have been satisfied on and as of each Closing
Date and the Company shall have furnished to the Underwriters a certificate of
the Company, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company, dated the Firm Shares
Closing Date (and, if applicable, the Additional Shares Closing Date), to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplement or amendment to the
Prospectus and this Agreement and that:
(A) the representations and warranties of the
Company in this Agreement are true and correct on and as of the Firm Shares
Closing Date (and, if applicable, on the Additional Shares Closing Date), with
the same effect as if made on the Firm Shares Closing Date (and, if applicable,
on the Additional Shares Closing Date); the Registration Statement, as amended
as of the Firm Shares Closing Date (and, if applicable, on the Additional
Shares Closing Date), does not include any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein not
misleading, and the Prospectus, as amended or supplemented as of the Firm
Shares Closing Date (and, if applicable, on the Additional Shares Closing
Date), does not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading; and the
Company has complied with all the agreements and satisfied all the conditions
under this Agreement on its part to be performed or satisfied at or prior to
the Firm Shares Closing Date (and, if applicable, at or prior to the Additional
Shares Closing Date);
-22-
(B) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the knowledge of the Company, threatened; and
(C) since the date of the most recent financial
statements included in the Prospectus, there has been no change or development
involving a prospective change, with respect to the business, properties,
prospects, financial condition or results of operations of the Company or the
Subsidiaries, taken as a whole, that could have a Material Adverse Effect.
(h) At the Effective Date, the Representation Date and at
each Closing Date, Xxxxxxx X. Xxxxxx & Company, LLP shall have furnished to the
Underwriters a letter or letters, dated respectively as of the Effective Date,
the Representation Date and each Closing Date, in form and substance
satisfactory to the Underwriters, containing statements and information of the
type customarily included in accountants' "comfort letters" to underwriters
with respect to the historical and pro forma financial statements and certain
financial and statistical information pertaining to the Company and the
Subsidiaries contained in the Registration Statement and the Prospectus.
(i) At the Effective Date and the Representation Date, KPMG
shall have furnished to the Underwriters a letter, dated respectively as of the
Effective Date and the Representation Date, in form and substance satisfactory
to the Underwriters, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters with
respect to the historical and pro forma financial statements and certain
financial and statistical information pertaining to Eagle Quest Golf Centers,
Inc. contained in the Registration Statement and the Prospectus.
(j) At the Effective Date and the Representation Date,
Feldman, Gutterman, Xxxxxxxx & Co. shall have furnished to the Underwriters a
letter, dated respectively as of the Effective Date and the Representation
Date, in form and substance satisfactory to the Underwriters, containing
statements and information of the type customarily included in accountants'
"comfort letters" to underwriters with respect to the historical and pro forma
financial statements and certain financial and statistical information
pertaining to Leisure Complexes, Inc. contained in the Registration Statement
and the Prospectus.
(k) At each Closing Date, counsel for the Underwriters shall
have been furnished with such information, certificates and documents as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Shares as contemplated herein and related proceedings,
or to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained, or otherwise in
connection with the offering contemplated hereby; and all opinions and
certificates mentioned above or elsewhere in this Agreement shall
-23-
be reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters.
(l) On or prior to the Representation Date, the Company shall
have furnished to the Underwriters a Lock-Up Agreement in form and substance
reasonably satisfactory to the Representatives from [ ].
6. Indemnification and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless
each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, to the fullest extent
lawful from and against any losses, expenses, claims, damages or liabilities
(including any and all investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted), which, jointly or severally, any of
them may become subject under the Act, the Exchange Act or otherwise, as such
expenses are incurred, insofar as such losses, expenses, claims, damages or
liabilities arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, or
in any Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or in any Blue Sky application or other document executed
by the Company specifically for that purpose or based upon information
furnished by the Company filed in any state or other jurisdiction in order to
qualify any or all of the Shares under the securities laws thereof or filed
with the Commission or any securities association or securities exchange (each,
an "Application"), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) any untrue statement or alleged untrue statement
made in Section 1(a) of this Agreement by the Company; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, expense, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with the written
information furnished to the Company by the Representatives on behalf of any
Underwriter expressly for use in the Registration or the Prospectus; and
provided, further, that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any Preliminary Prospectus, the
indemnity agreement contained in this Section 6(a) shall not inure to the
benefit of any such Underwriter the directors, officers, employees or agents of
such Underwriter or any person controlling such Underwriter and the Company
shall not be liable to any such Underwriter, the directors, officers, employees
or agents of such Underwriter or any persons controlling such Underwriter, from
whom the person asserting any such losses, expenses, claims, damages or
liabilities purchased the Shares concerned, to the extent that any such loss,
expense, claim, damage or liability results from the fact that there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such Shares to such person, a copy of the Prospectus, as the same may
be amended or supplemented, within the time required by the Act (if -24-
-24-
required thereby), and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus was corrected in such Prospectus and the Company had
previously furnished copies thereof to such Underwriter on a timely basis in
order to permit the Prospectus (as the same may be amended or supplemented) to
be sent or given. The foregoing indemnity agreement shall be in addition to any
liability that the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
director of the Company and each officer who signs the Registration Statement,
to the same extent as the foregoing indemnities from the Company to each
Underwriter, the directors, officers, employees and agents of such Underwriter
and any person controlling such Underwriter, but only insofar as such loss,
expense, claim, damage or liability arises out of or is based upon any untrue
statement or omission or alleged untrue statement or omission made in reliance
or in conformity with information relating to such Underwriter furnished in
writing to the Company by the Representatives on behalf of such Underwriter,
expressly for use in the Registration Statement or the Prospectus. This
indemnity agreement will be in addition to any liability that any Underwriter
may otherwise have. The Company agrees that the statements set forth in the
last paragraph of the cover page of the Prospectus, the stabilization legend on
the inside front cover page of the Prospectus, the table of Underwriters set
forth under the heading "Underwriting" in the Prospectus and the amounts of the
selling concession and reallowance set forth in the Prospectus constitute the
only information provided in writing by the Representatives on behalf of any
Underwriter expressly for use in the Registration Statement or the Prospectus.
(c) If any action is brought against an indemnified party
under this Section , the indemnified party or parties shall promptly notify the
indemnifying party in writing of the institution of such action (provided that
the failure to give such notice shall not relieve the indemnifying party of any
liability which it may have pursuant to this Agreement, unless and to the
extent the indemnifying party did not otherwise learn of such action and such
failure has resulted in the forfeiture of substantive rights or defenses by the
indemnifying party) and the indemnifying party shall assume the defense of such
action, including the employment of counsel and payment of reasonable expenses.
The indemnified party or parties shall have the right to employ separate
counsel (including local counsel) in any such case and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified party or parties unless (i) the employment of such
counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such action, (ii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party to
take charge of the defense of such action within a reasonable time after notice
of the institution of such action, (iii) such indemnified party or parties
shall have reasonably concluded that there may be defenses available to it or
them that are different from or additional to those available to the
indemnifying
-25-
party or (iv) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest
(in which case the indemnifying party shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties, in any of
which events such fees and expenses shall be borne by the indemnifying party
and paid as incurred; provided that the indemnifying party shall only be
responsible for the fees and expenses of one counsel for the indemnified party
or parties hereunder). Anything in this paragraph to the contrary
notwithstanding, the indemnifying party shall not be liable for any settlement
of any such claim or action effected without its written consent, which consent
shall not be unreasonably withheld. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or
proceeding.
(d) If the indemnification provided for in this Section is
unavailable to an indemnified party under subsections (a) or (b) of this
Section 6 or is insufficient to hold harmless a party indemnified thereunder,
in respect of any losses, expenses, claims, damages or liabilities referred to
therein, then each applicable indemnifying party shall contribute to the amount
paid in settlement of any action, suit or proceeding or any claims asserted,
but after deducting in the case of losses, expenses, claims, damages and
liabilities suffered by the Company, any contribution received by the Company
from persons other than the Underwriters who may also be liable for
contribution, including persons who control the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, officers of the
Company who signed the Registration Statement and directors of the Company, to
which the Company and one or more of the Underwriters may be subject, in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand, and the Underwriters on the other hand, from the
offering of the Shares or, if, but only if, such allocation is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to above but also the relative fault of the Company
on the one hand, and the Underwriters on the other hand, in connection with the
statements or omissions which resulted in such losses, expenses, claims,
damages or liabilities as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand, and the
Underwriters on the other hand, shall be deemed to be in the same proportion as
the total proceeds from the offering (net of underwriting discounts but before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault of
the Company on the one hand, and the Underwriters 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
-26-
the Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
expenses, claims and liabilities referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any claim or action. The Company and
the Underwriters agree that it would not be just and equitable if contribution
pursuant hereto were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
Section 6(d), no Underwriter shall be required to contribute any amount in
excess of the underwriting discount received by it by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this Section 6(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The Company hereby agrees that in addition to its other
obligations under subsection (a) of this Section 6, as an interim measure
during the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission described in subsection (a) of this Section, it
will reimburse the Underwriters on a monthly basis for all reasonable legal
fees and other expenses reasonably incurred in connection with investigating or
defending such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the obligations under this Section 6 and the possibility that
such payments might later be held to be improper by a court of competent
jurisdiction. To the extent that any such interim reimbursement payment is so
held to have been improper, the Underwriters shall promptly return such
payments to the Company.
7. Survival. The respective indemnity and contribution agreements
contained in Section hereof and the covenants, warranties and other
representations of the Company contained in this Agreement or contained in
certificates of officers of the Company or submitted pursuant hereto, shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, or any of their respective officers, employees,
directors, stockholders or person who controls the Underwriters within the
meaning of Section 15 of the Act, or by or on behalf of the Company or any of
its directors, officers, employees or any person who controls the Company
within the meaning of Section 15 of the Act, and shall survive delivery of and
payment for the Shares.
8. Default by an Underwriter. If one or more of the Underwriters shall
fail or refuse at a Closing Date to purchase and pay for any of the Shares
agreed to be purchased by such Underwriter or Underwriters hereunder on such
date and the aggregate number of Firm Shares or Additional Shares, as the case
may be, which such
-27-
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 nondefaulting
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 8 by an amount in excess of one-tenth of such number
of Firm Shares or Additional Shares, as the case may be, without the written
consent of such Underwriter. If on the Firm Shares Closing Date or on the
Additional Shares Closing Date, 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 in the event of a default by a Underwriter and
arrangements satisfactory to the Representatives and the Company 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 Company. In any such case which does not result in termination of this
Agreement, either the Representatives or the Company shall have the right to
postpone the Firm Shares Closing Date, or the Additional Shares 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.
9. Termination of Agreement.
(a) The Representatives may terminate this Agreement, by
written notice to the Company prior to the Firm Shares Closing Date (or, if
applicable, the Additional Shares Closing Date) (i) if there shall occur any
default or breach by the Company hereunder or the failure to satisfy any of the
conditions contained in Section hereof, (ii) if there has been, since the date
of this Agreement or since the respective dates as of which information is
provided in the Registration Statement and prior to the Firm Shares Closing
Date (or, if applicable, the Additional Shares Closing Date), there shall have
been any material adverse change, or any development involving a prospective
material adverse change (including, without limitation, a change in the
management or control of the Company), in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company, or (iii) if, since the date of this Agreement and prior to the Firm
Shares Closing Date (or, if applicable, the Additional Shares Closing Date),
(A) there has occurred any material adverse
-28-
change in the financial markets of the United States or in political, financial
or economic conditions in the United States or any outbreak or material
escalation of hostilities or declaration by the United States of a national
emergency or war or other calamity or crisis, the effect of which on the
financial securities markets of the United States is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to market the
Shares on the terms and in the manner contemplated by the Prospectus, or (B)
trading in any of the securities of the Company has been suspended by the
Commission, or trading generally on the New York Stock Exchange or the Nasdaq
National Market has been suspended (other than by limitation on hours or number
of days of trading), or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices for securities have been required, by the New York
Stock Exchange or the Nasdaq National Market or by order of the Commission or
any other governmental authority or (C) a banking moratorium has been declared
by any of the Federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section
or any other provision of this Agreement, such termination shall be without
liability of any party to any other party except as provided in Sections and 6.
10. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Underwriters, c/x Xxxxxxxxx & Company, Inc., 00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, attention of Xxxxx Xxxxx, Esq., with
a copy to Fulbright & Xxxxxxxx L.L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention of Xxxx Xxxxxx, Esq.; notices to the Company shall be directed
to 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, attention of Xxxxxxx Xxxxx,
with a copy to Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, attention of Xxxxxxx X. Xxxx, Esq.
11. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company and their respective successors and
legal representatives. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to provide any person, firm or corporation,
other than the Underwriters, the Company and their respective successors and
legal representatives and the controlling persons and officers, employees,
directors and stockholders referred to in Sections and and their respective
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters, the Company and their
respective successors and legal representatives, and said controlling persons,
stockholders, officers and directors and their respective heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Shares from the Underwriters shall be deemed to be a successor
by reason merely of such purchase.
-29-
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
13. Counterparts. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
[Remainder of page intentionally left blank]
-30-
* * * * *
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours,
FAMILY GOLF CENTERS, INC.
By:
------------------------------------
Xxxxxxx Xxxxx
Chairman and Chief Executive Officer
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXXXXX & COMPANY, INC.
BANCAMERICA XXXXXXXXX XXXXXXXX
CIBC XXXXXXXXXXX CORP.
EVEREN SECURITIES, INC.
PRUDENTIAL SECURITIES INCORPORATED
By: XXXXXXXXX & COMPANY, INC.
By:
-----------------------------------
Name:
Title:
For themselves and as Representatives of
the other Underwriters named in this Agreement
SCHEDULE I
Number of Firm Shares
Underwriter To Be Purchased
Xxxxxxxxx & Company, Inc. ...........................
BancAmerica Xxxxxxxxx Xxxxxxxx.......................
CIBC Xxxxxxxxxxx Corp................................
EVEREN Securities, Inc...............................
Prudential Securities Incorporated...................
Total...................................
-----------
3,500,000
===========
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