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EXHIBIT 1
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O'CHARLEY'S INC.
(a Tennessee corporation)
_________ Shares of Common Stock
UNDERWRITING AGREEMENT
Dated: ________, 2001
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Table of Contents
Page
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SECTION 1. Representations and Warranties..............................................................2
(a) Representations and Warranties by the Company...................................................2
(b) Officer's Certificates.........................................................................10
SECTION 2. Sale and Delivery to Underwriters; Closing.................................................10
(a) Initial Securities.............................................................................10
(b) Option Securities..............................................................................10
(c) Payment........................................................................................10
(d) Denominations; Registration....................................................................11
SECTION 3. Covenants of the Company...................................................................11
(a) Compliance with Securities Regulations and Commission Requests.................................11
(b) Filing of Amendments...........................................................................12
(c) Delivery of Registration Statements............................................................12
(d) Delivery of Prospectuses.......................................................................12
(e) Continued Compliance with Securities Laws......................................................12
(f) Blue Sky Qualifications........................................................................13
(g) Rule 158.......................................................................................13
(h) Use of Proceeds................................................................................13
(i) Listing........................................................................................13
(j) Restriction on Sale of Securities..............................................................13
(k) Reporting Requirements.........................................................................14
(l) Preparation of Prospectus......................................................................14
SECTION 4. Payment of Expenses........................................................................14
(a) Expenses.......................................................................................14
(b) Termination of Agreement.......................................................................15
SECTION 5. Conditions of Underwriters' Obligations....................................................15
(a) Effectiveness of Registration Statement........................................................15
(b) Opinion of Counsel for Company.................................................................15
(c) Opinion of Counsel for Underwriters............................................................15
(d) Officers' Certificate..........................................................................16
(e) Accountant's Comfort Letter....................................................................16
(f) Bring-down Comfort Letter......................................................................16
(g) Approval of Listing............................................................................17
(h) Lock-up Agreements.............................................................................17
(i) No Objection...................................................................................17
(j) Conditions to Purchase of Option Securities....................................................17
(k) Additional Documents...........................................................................18
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(l) Termination of Agreement.......................................................................18
SECTION 6. Indemnification............................................................................18
(a) Indemnification of Underwriters................................................................18
(b) Indemnification of Company, Directors and Officers.............................................19
(c) Actions against Parties; Notification..........................................................19
(d) Settlement Without Consent if Failure to Reimburse.............................................20
SECTION 7. Contribution...............................................................................20
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.............................21
SECTION 9. Termination of Agreement...................................................................22
(a) Termination; General...........................................................................22
(b) Liabilities....................................................................................22
SECTION 10. Default by One or More of the Underwriters.................................................22
SECTION 11. Notices....................................................................................23
SECTION 12. Parties....................................................................................23
SECTION 13. GOVERNING LAW AND TIME.....................................................................23
SECTION 14. Effect of Headings.........................................................................23
SCHEDULES
Schedule A - List of Underwriters..............................................................Sch A-1
Schedule B - Pricing Information...............................................................Sch B-1
Schedule C - List of Subsidiaries..............................................................Sch C-1
Schedule D - List of Persons Subject to Lock-up................................................Sch D-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel..................................................A-1
Exhibit B - Form of Lock-up Letter................................................................B-1
[Exhibit C - Form of Georgia Counsel Opinion......................................................C-1]
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O'CHARLEY'S INC.
(a Tennessee corporation)
_______ Shares of Common Stock
(No Par Value)
UNDERWRITING AGREEMENT
, 2001
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First Union Securities, Inc.
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
SunTrust Equitable Securities Corporation
As Representatives of the several Underwriters
c/o First Union Securities, Inc.
▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
O'Charley's Inc. a Tennessee corporation (the "Company"), confirms its
agreement with First Union Securities, Inc. ("First Union") and each of the
other Underwriters named in Schedule A hereto (collectively, the "Underwriters",
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom First Union Securities, Inc., U.S.
Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. and SunTrust Equitable Securities Corporation are
acting as representatives (in such capacity, the "Representatives"), with
respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of
shares of Common Stock, no par value, of the Company ("Common Stock") set forth
in said Schedule A, and with respect to the grant by the Company to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of ______ additional shares of
Common Stock to cover over-allotments, if any. The aforesaid ______ shares of
Common Stock (the "Initial Securities") to be purchased by the Underwriters and
all or any part of the ______ shares of Common Stock subject to the option
described in Section 2(b) hereof (the "Option Securities") are hereinafter
called, collectively, the "Securities".
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-57326) and, if
applicable, one or more amendments thereto covering the registration of the
Securities under the Securities Act of 1933, as amended (the "1933 Act"),
including a related preliminary prospectus or prospectuses.
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Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations. The information included in such prospectus that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information". Each prospectus used before such registration statement became
effective, and any prospectus that omitted the Rule 430A Information that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called, together with the documents incorporated or deemed
to be incorporated by reference therein pursuant to Item 12 of Form S-3 under
the 1933 Act, a "preliminary prospectus". Such registration statement, including
the exhibits thereto, the schedules thereto, if any, and the documents
incorporated or deemed to be incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act, as amended (if applicable) at the time it
became effective and including the Rule 430A Information, is herein called the
"Registration Statement". Any related registration statement filed by the
Company pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred
to as the "Rule 462(b) Registration Statement", and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The final prospectus, including the documents incorporated or deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form first furnished to the Underwriters for use in connection with
the offering of the Securities, is herein called the "Prospectus". For purposes
of this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (and all
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in the Registration Statement, any
preliminary prospectus or the Prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration Statement,
any preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), which is incorporated or deemed to be incorporated by
reference in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each Underwriter,
as follows:
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(i) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became or become effective and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments
and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements thereto, at
the time the Prospectus or any such amendment or supplement was issued
and at the Closing Time (and, if any Option Securities are purchased,
at the Date of Delivery), included or will include an untrue statement
of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through First
Union expressly for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copy thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time the Prospectus was
issued and at the Closing Time (and if any Option Securities are
purchased, at the Date of Delivery), did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
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(iii) Independent Accountants. The accountants who
certified the financial statements and supporting schedules included in
the Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements of the
Company included in the Registration Statement and the Prospectus,
together with the related schedules (if any) and notes, present fairly
the financial position of the Company and its consolidated subsidiaries
at the dates indicated and the results of operations, changes in
shareholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; and such financial statements
have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The data appearing in the
Registration Statement and the Prospectus under the captions "Selected
Financial Data" and "Prospectus Summary--Summary Financial and Other
Data" present fairly the information shown therein and have been
compiled on an accounting basis consistent with that of the audited
financial statements of the Company included in the Registration
Statement and the Prospectus.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(vi) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Tennessee and has power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each subsidiary of the
Company has been duly organized and is validly existing as a
corporation, limited partnership or limited liability company, as the
case may be, in good standing under the laws of the jurisdiction of its
organization, has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign
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corporation, limited partnership or limited liability company, as the
case may be, to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect; all of the issued and
outstanding capital stock of each such subsidiary that is a
corporation, all of the issued and outstanding partnership interests of
each such subsidiary that is a limited partnership and all of the
issued and outstanding limited liability company interests, membership
interests or other similar interests of each such subsidiary that is a
limited liability company have been duly authorized and validly issued,
are fully paid and non-assessable and are owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; and
none of the outstanding shares of capital stock, partnerships interests
or limited liability company interests, membership interests or other
similar interests of any such subsidiary was issued in violation of any
preemptive rights, rights of first refusal or other similar rights of
any securityholder of such subsidiary. The only subsidiaries of the
Company are the subsidiaries listed on Schedule C hereto and Schedule C
accurately sets forth whether each such subsidiary is a corporation,
limited partnership or limited liability company and the jurisdiction
of organization of each such subsidiary and, in the case of any
subsidiary which is a partnership, its partners. Any subsidiaries of
the Company which are "significant subsidiaries" as defined by Rule
1-02 of Regulation S-X are listed on Schedule C hereto under the
caption "Material Subsidiaries".
(viii) Capitalization. The authorized, issued and
outstanding capital stock of the Company is as set forth in the
Prospectus in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances pursuant to this
Agreement, pursuant to employee benefit plans referred to in the
Prospectus or pursuant to the exercise of options referred to in the
Prospectus); the shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable; and none of the outstanding shares of capital stock
of the Company was issued in violation of any preemptive rights, rights
of first refusal or other similar rights of any securityholder of the
Company.
(ix) Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.
(x) Authorization and Description of Securities. The
Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued, fully paid and
non-assessable; the Common Stock, the Company's preferred stock, no par
value (the "Preferred Stock"), the Company's authorized but unissued
Series A Junior Preferred Stock, no par value (the "Series A Preferred
Stock"), the Company's charter and by-laws, the Rights Agreement dated
as of December 8, 2000 (the "Rights Agreement"), between the Company
and First Union National Bank, as rights agent, and the stock purchase
rights (the "Rights") created under the Rights Agreement conform in all
material respects to all of the respective statements relating thereto
contained in the Prospectus and such statements conform to
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the rights set forth in the respective instruments and agreements
defining the same; no holder of the Securities will be subject to
personal liability by reason of being such a holder; the issuance of
the Securities is not subject to any preemptive rights, rights of first
refusal or other similar rights of any securityholder of the Company;
one Right has been issued in respect of each outstanding share of
Common Stock and is evidenced by the certificate for that share of
Common Stock and each such Right has been duly authorized and validly
issued; and one Right will be issued in respect of each Security issued
and sold to the Underwriters and will be evidenced by the certificate
for that Security and each such Right has been duly authorized and,
upon issuance of such Security, will be validly issued.
(xi) Absence of Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is in violation of its
Organizational Documents (as defined below) or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which any of them may be bound, or to which any of the property
or assets of the Company or any of its subsidiaries is subject
(collectively, "Agreements and Instruments"), except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus
under the caption "Use of Proceeds") and compliance by the Company with
its obligations under this Agreement have been duly authorized by all
necessary action, corporate or other, and do not and will not, whether
with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event
(as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions
of the Organizational Documents of the Company or any of its
subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any of its subsidiaries or any of their respective
assets, properties or operations. As used herein, "Organizational
Documents" means, in the case of a corporation, its charter and
by-laws; in the case of a limited or general partnership, (a) its
partnership certificate, certificate of formation or similar
organizational document and (b) its partnership agreement; in the case
of a limited liability company, (c) its articles of organization,
certificate of formation or similar organizational document and (d) its
operating agreement, limited liability company agreement, membership
agreement or other similar agreement; in the case of a trust, its trust
agreement; and, in the case of any other entity, the organizational
documents of such entity; and a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any subsidiary of the
Company.
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(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary of the Company exists or, to
the knowledge of the Company, is imminent, and the Company is not aware
of any existing or imminent labor disturbance by the employees of any
of the principal suppliers, manufacturers, customers or contractors of
the Company or any of its subsidiaries which, in any such case, may
reasonably be expected to result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries which is required to be disclosed in
the Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations under this Agreement; the aggregate of all
pending legal or governmental proceedings to which the Company or any
of its subsidiaries is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated or deemed to be
incorporated by reference therein or to be filed as exhibits thereto
which have not been so described and filed as required.
(xv) Possession of Intellectual Property. Except as
described in the Prospectus, the Company and its subsidiaries own or
possess, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them, and neither the Company nor any of its subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xvi) Absence of Further Requirements. (A) No filing with,
or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency, domestic or foreign, (B) no authorization, approval, vote or
other consent of any shareholder of the Company, and (C) no
authorization, approval, vote or other consent of any other person or
entity, is necessary or required for the performance by the Company of
its obligations under this Agreement, for the offering, issuance, sale
or delivery of the Securities hereunder, or for the consummation
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of any of the other transactions contemplated by this Agreement, in
each case on the terms contemplated by the Prospectus, except such as
have been already obtained under the 1933 Act or the 1933 Act
Regulations or such as may be required under state securities laws.
(xvii) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses") issued
by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and neither
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries
have good and marketable title in fee simple to all real property owned
by any of them and good title to all other properties owned by any of
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind
except such as (a) are described in the Prospectus or (b) do not,
singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company or any of its subsidiaries; all real
property, buildings and other improvements, and equipment and other
property held under lease or sublease by the Company or any of its
subsidiaries is held by them under valid, subsisting and enforceable
leases or subleases, as the case may be, with, solely in the case of
leases or subleases relating to real property and buildings or other
improvements, such exceptions as are not material and do not interfere
with the use made or proposed to be made of such property and buildings
or other improvements by the Company and its subsidiaries, and all such
leases and subleases are in full force and effect; and neither the
Company nor any of its subsidiaries has any notice of any claim of any
sort that has been asserted by anyone adverse to the rights of the
Company or any of its subsidiaries under any of the leases or subleases
mentioned above or affecting or questioning the rights of the Company
or any of its subsidiaries to the continued possession of the leased or
subleased premises under any such lease or sublease except for such
claims which, if successfully asserted against the Company or any of
its subsidiaries, would not singly or in the aggregate have a Material
Adverse Effect.
(xix) Compliance with Cuba Act. To the extent applicable,
the Company has complied with, and is and will be in compliance with,
the provisions of that certain Florida act relating to disclosure of
doing business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder (collectively, the
"Cuba Act") or is exempt therefrom.
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(xx) Investment Company Act. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xxi) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(xxii) Absence of Registration Rights. There are no persons
with registration rights or other similar rights to have any securities
(debt or equity) (A) registered pursuant to the Registration Statement
or included in the offering contemplated by this Agreement or (B)
otherwise registered by the Company under the 1933 Act.
(xxiii) Parties to Lock-Up Agreements. Schedule D hereto
contains a true, complete and correct list of all directors and
executive officers of the Company, each of whom has executed and
delivered to the Representative a lock-up agreement in the form of
Exhibit B hereto.
(xxiv) Information Provided by the Company for NASD
Purposes. All of the information provided by the Company to the
Underwriters or to counsel for the Underwriters in connection with
letters, filings or other supplemental information provided to NASD
Regulation Inc. pursuant to NASD Conduct Rule 2710 or 2720 is true,
complete and correct; and there is a "bona fide independent market", as
defined in Section 2720(a)(3) of the NASD Conduct Rules, for the Common
Stock.
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(xxv) Nasdaq Stock Market's National Market. The
outstanding shares of Common Stock are duly listed, and admitted and
authorized for trading, on the Nasdaq Stock Market's National Market
and the Securities being sold hereunder by the Company are duly listed,
and admitted and authorized for trading, subject to official notice of
issuance, on the Nasdaq Stock Market's National Market.
(b) Officer's Certificates. Any certificate signed by any officer
of the Company or any of its subsidiaries and delivered to the Representatives
or to counsel for the Underwriters shall be deemed a representation and warranty
by the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional _____
shares of Common Stock at the price per share set forth in Schedule B, less an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
The option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Representatives to the
Company setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of delivery (a "Date
of Delivery") shall be determined by the Representatives, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Securities then being purchased which the number of
Initial Securities set forth in Schedule A opposite the name of such Underwriter
bears to the total number of Initial Securities, subject in each case to such
adjustments as the Representatives in their discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of ▇▇▇▇▇ &
▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by the Representatives and the Company, at
______:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after
4:30 P.M. (Eastern time) on any given day) business day after the date hereof
(unless
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postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Company, on each Date of Delivery as specified in the notice from the
Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. First Union, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time or the relevant Date of Delivery,
as the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York [Baltimore?] not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with
each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A and will notify the Representatives
immediately, and confirm the notice in writing, (i) when the
Registration Statement, any Rule 462(b) Registration Statement or any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will
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promptly effect the filings necessary pursuant to Rule 424(b) and will
take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was
not, it will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Filing of Amendments. The Company will give the
Representatives notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under
Rule 462(b)) or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Representatives with copies of
any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters
shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference
therein) and signed copies of all consents and certificates of experts,
and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of
each amendment thereto (without exhibits) for each of the Underwriters.
The copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered
to each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus
(as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The
Company will comply with the 1933 Act and the 1933 Act Regulations and
the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in
this Agreement and in the Prospectus. If at any time when a prospectus
is required by the 1933 Act to be delivered in connection with sales of
the Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will
not
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include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion
of such counsel, at any such time to amend the Registration Statement
or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish
to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its
best efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions (domestic or foreign) as the
Representatives may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not
be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of
not less than one year from the effective date of the Registration
Statement and any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net
proceeds received by it from the sale of the Securities in the manner
specified in the Prospectus under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to
effect and maintain the quotation of the Securities on the Nasdaq Stock
Market's National Market and will file with the Nasdaq Stock Market's
National Market all documents and notices required by the Nasdaq Stock
Market's National Market of companies that have securities that are
traded in the over-the-counter market and quotations for which are
reported by the Nasdaq Stock Market's National Market.
(j) Restriction on Sale of Securities. The Company will
not, without the prior written consent of First Union, offer, sell,
contract to sell, pledge, or otherwise dispose of, (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition
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due to cash settlement or otherwise) by the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange
Act, any shares of the Company's Common Stock or other capital stock or
any securities convertible into, or exercisable or exchangeable for,
shares of the Company's Common Stock or other capital stock, or
publicly announce an intention to effect any such transaction, for a
period beginning on and including the date of this Agreement through
and including the date which is 90 days after the date of this
Agreement; provided, however, that (A) the Company may issue and sell
Securities pursuant to this Agreement, (B) the Company may issue and
sell Common Stock and options to purchase Common Stock pursuant to any
employee stock purchase plan or stock option plan as in effect on the
date of this Agreement, (C) the Company may issue Common Stock upon the
exercise of stock options outstanding on the date of this Agreement or
issued after the date of this Agreement pursuant to any such stock
option plan as in effect on the date of this Agreement and (D) the
Company may file with the Commission a registration statement on Form
S-8 in respect of the shares referred to in clauses (C) and (D) of this
sentence. [TO BE CONFORMED TO S-3 AS NEEDED.]
(k) Reporting Requirements. The Company, during the
period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, will file all documents required to be filed with
the Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
(l) Preparation of Prospectus. Immediately following the
execution of this Agreement, the Company will prepare the Prospectus
containing the Rule 430A Information and other selling terms of the
Securities, the plan of distribution thereof and such other information
as may be required by the 1933 Act or the 1933 Act Regulations or as
the Representatives and the Company may deem appropriate, and will file
or transmit for filing with the Commission, in accordance with Rule
424(b) of the 1933 Act Regulations, copies of the Prospectus.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the word processing, printing and delivery to the Underwriters of
this Agreement, any Agreement among Underwriters and such other documents as may
be required in connection with the offering, purchase, sale, issuance or
delivery of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees and
disbursements of the counsel, accountants and other advisors to the Company, (v)
the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection with the
preparation of the Blue Sky Survey and any
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supplements thereto, (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus and of the Prospectus and any amendments
or supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplements thereto,
(viii) the fees and expenses of any transfer agent or registrar for the
Securities, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by
the National Association of Securities Dealers, Inc. (the "NASD") of the terms
of the sale of the Securities, (x) the fees and expenses incurred in connection
with listing of the Securities for quotation on the Nasdaq Stock Market's
National Market, and (xi) the copying of closing documents.
(b) Termination of Agreement. If this Agreement is terminated by
the Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the several Underwriters hereunder are subject to the accuracy of
the representations and warranties of the Company contained in Section 1 hereof
or in certificates of any officer of the Company or any subsidiary of the
Company delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder, and to the following
further conditions:
(a) Effectiveness of Registration Statement. The
Registration Statement, including any Rule 462(b) Registration
Statement, has become effective and at Closing Time (or the applicable
Date of Delivery, as the case may be) no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or, to the
knowledge of the Company, threatened by the Commission, and any request
on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. The Prospectus containing the Rule 430A Information shall
have been filed or transmitted for filing with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations within the time period
prescribed by such Rule, and prior to Closing Time the Company shall
have provided evidence satisfactory to the Representatives of such
timely filing or transmittal.
(b) Opinion of Counsel for Company. At Closing Time, the
Representative shall have received the favorable opinions, dated as of
Closing Time, (i) of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for the Company,
in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of
the other Underwriters, to the effect set forth in Exhibit A hereto and
to such further effect as counsel to the Underwriters may reasonably
request, [and (ii) of ______, special Georgia counsel to the Company,
in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of
the other Underwriters, to the effect set forth in Exhibit C, and to
such further effect as counsel for the Underwriters may reasonably
request.
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(c) Opinion of Counsel for Underwriters. At Closing Time,
the Representatives shall have received the favorable opinion, dated as
of Closing Time, of ▇▇▇▇▇ & Wood LLP, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of
the other Underwriters, with respect to the matters set forth in
clauses (i), (v) (limited, in the case of the opinion as to the absence
of personal liability of shareholders, to the charter and by-laws of
the Company and the Tennessee Business Corporation Act) and (vi)
(solely as to preemptive or other similar rights arising under the
charter or by-laws of the Company or the Tennessee Business Corporation
Act), (viii) through (x), inclusive, (xii), (xiv) (solely as to the
information in the Prospectus under "Description of Capital Stock--_")
and the penultimate paragraph of Exhibit A hereto. In giving such
opinion, such counsel may rely without investigation, as to all matters
arising under or governed by the laws of the State of Tennessee, on the
opinion of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC referred to in Section 5(b) above,
and as to all matters governed by the laws of any jurisdictions other
than the law of the States of New York and Tennessee and the federal
law of the United States, upon the opinions of counsel satisfactory to
the Representatives. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and public
officials.
(d) Officers' Certificate. At Closing Time, there shall
not have been, since the date hereof or since the respective dates as
of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and the Representatives shall have
received a certificate of the Chairman, Chief Executive Officer,
President or a Vice President of the Company and of the chief financial
or chief accounting officer of the Company, dated as of Closing Time,
to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties of the Company in Section 1(a)
hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or, to their knowledge, contemplated by the
Commission.
(e) Accountant's Comfort Letter. At the time of the
execution of this Agreement, the Representatives shall have received
from KPMG LLP a letter, dated the date of this Agreement and in form
and substance satisfactory to the Representatives, together with signed
or reproduced copies of such letter for each of the other Underwriters,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information of the Company
contained in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the
Representatives shall have received from KPMG LLP a letter, dated as of
Closing Time and in form and substance satisfactory to the
Representatives, to the effect that they reaffirm the
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statements made in the letter furnished pursuant to subsection (e) of
this Section, except that the specified date referred to shall be a
date not more than three business days prior to Closing Time.
(g) Approval of Listing. At Closing Time and each Date of
Delivery, if any, the Securities to be purchased by the Underwriters at
such time shall have been approved for inclusion in the Nasdaq Stock
Market's National Market, subject only to official notice of issuance.
(h) Lock-up Agreements. Prior to the date of this
Agreement, the Representatives shall have received an agreement
substantially in the form of Exhibit B hereto signed by each of the
persons listed in Schedule D hereto.
(i) No Objection. Prior to the date of this Agreement,
the NASD shall have confirmed that it has not raised any objection with
respect to the fairness and reasonableness of the underwriting terms
and arrangements.
(j) Conditions to Purchase of Option Securities. In the
event that the Underwriters exercise their option provided in Section
2(b) hereof to purchase all or any portion of the Option Securities,
the representations and warranties of the Company contained herein and
the statements in any certificates furnished by the Company or any
subsidiary of the Company hereunder shall be true and correct as of
each Date of Delivery and, at the relevant Date of Delivery, the
Representatives shall have received:
(i) Officers' Certificate. A certificate, dated such Date
of Delivery, of the Chairman, Chief Executive Officer,
President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of
such Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable
opinions of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for the Company,
[and of the firm of local counsel named in Section 5(b), each]
in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery (and, if applicable,
accompanied by other opinions of local counsel dated such Date
of Delivery), relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same
effect as the respective opinions required by Section 5(b)
hereof.
(iii) Opinion of Counsel for Underwriters. The favorable
opinion of ▇▇▇▇▇ & Wood LLP, counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities
to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from KPMG LLP, in
form and substance satisfactory to the Representatives and
dated such Date of Delivery, substantially in the same form
and substance as the letter furnished to the Representatives
pursuant to Section 5(f) hereof, except that the "specified
date" in
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the letter furnished pursuant to this paragraph shall be a
date not more than five days prior to such Date of Delivery.
(k) Additional Documents. At Closing Time and at each
Date of Delivery, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any
of the conditions, contained in this Agreement; and all proceedings
taken by the Company in connection with the issuance and sale of the
Securities as herein contemplated and in connection with the other
transactions contemplated by this Agreement shall be satisfactory in
form and substance to the Representatives and counsel for the
Underwriters.
(l) Termination of Agreement. If any condition specified
in this Section shall not have been fulfilled when and as required to
be fulfilled, this Agreement, or, in the case of any condition to the
purchase of Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several Underwriters to purchase
the relevant Option Securities, may be terminated by the
Representatives by notice to the Company at any time at or prior to
Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
Rule 430A Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
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(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by First
Union), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through First Union expressly for use in the Registration Statement
(or any amendment thereto), including the Rule 430A Information, if applicable,
or in any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided, further, that this indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, liabilities, claims,
damages or expenses purchased Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any such amendments or supplements thereto, but
excluding documents incorporated or deemed to be incorporated by reference
therein) was not sent or given by or on behalf of such Underwriter to such
person, if such is required by law, at or prior to the written confirmation of
the sale of such Securities to such person and if the Prospectus (as so amended
or supplemented, if applicable) would have corrected the defect giving rise to
such loss, liability, claim, damage or expense, except that this proviso shall
not be applicable if such defect shall have been corrected in a document which
is incorporated or deemed to be incorporated by reference in the Prospectus.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section 6, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through First Union expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties
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shall be selected by First Union, and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case
20
24
as set forth on the cover of the Prospectus, bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
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 any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
21
25
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the Nasdaq
Stock Market's National Market, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq Stock Market's National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed
10% of the number of Securities to be purchased on such date, each of
the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of
the number of Securities to be purchased on such date, this Agreement
or, with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the Underwriters to purchase and of the Company
to sell the Option Securities to be purchased and sold on
22
26
such Date of Delivery shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the Representatives or the Company shall have the
right to postpone Closing Time or the relevant Date of Delivery, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at c/o First Union
Securities, Inc., ▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; and notices to the Company shall be directed to it at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of Chief Financial Officer.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
[Signature Page Follows]
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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
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
O'CHARLEY'S INC.
By
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
FIRST UNION SECURITIES, INC.
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
SUNTRUST EQUITABLE SECURITIES CORPORATION
By: FIRST UNION SECURITIES, INC.
By
------------------------------------------
Authorized Signatory
For themselves and as Representative of the Underwriters named in Schedule A
hereto.
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SCHEDULE A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
First Union Securities, Inc.................................
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc..............................
SunTrust Equitable Securities Corporation...................
----------
Total...............................
==========
Sch A-1
29
SCHEDULE B
O'Charley's Inc.
__ Shares of Common Stock
(No Par Value)
1. The initial public offering price per share for the Securities
shall be $__.
2. The purchase price per share for the Securities to be paid by
the several Underwriters shall be $__, being an amount equal to the initial
public offering price set forth above less $__ per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
Sch B-1
30
SCHEDULE C
Subsidiaries of the Company
Name Jurisdiction of Organization Type of Entity
---- ---------------------------- --------------
Air Travel Services, Inc. Tennessee Corporation
O'Charley's Sports Bar, Inc. Alabama Corporation
OCI, Inc. Delaware Corporation
MATERIAL SUBSIDIARIES
DFI, Inc. Tennessee Corporation
O'Charley's Management Tennessee Corporation
Company, Inc. ("OCMC")
O'Charley's Restaurant Properties, Delaware Limited Liability Company
LLC
O'Charley's Service Company, Inc. Tennessee Corporation
Stoney River Management Delaware Corporation
Company, Inc. ("SRMC")
Stoney River Legendary Georgia Limited Partnership
Management L.P. ("Stoney River")
OCMC is the sole general partner and SRMC is the sole limited partner of Stoney
River
[LIST TO BE VERIFIED BY BBS]
Sch C-1
31
SCHEDULE D
List of Persons Subject to Lock-up
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
A. ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
G. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
H. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
[OTHERS MAY BE ADDED]
Sch D-1
32
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Tennessee.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus in the column entitled
"Actual" under the caption "Capitalization" (except for subsequent
issuances pursuant to the Underwriting Agreement, pursuant to employee
benefit plans referred to in the Prospectus or pursuant to the exercise
of options referred to in the Prospectus); the shares of issued and
outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in
violation of any preemptive rights, rights of first refusal or other
similar rights of any securityholder of the Company arising under the
charter or bylaws of the Company, the Tennessee Business Corporation
Act or, to our knowledge, otherwise.
(v) The Securities have been duly authorized for issuance
and sale to the Underwriters pursuant to the Underwriting Agreement
and, when issued and delivered by the Company pursuant to the
Underwriting Agreement against payment of the consideration set forth
in the Underwriting Agreement, will be validly issued, fully paid and
non-assessable; and no holder of the Securities is subject to personal
liability by reason of being such a holder under the charter or by-laws
of the Company, the Tennessee Business Corporation Act or, to our
knowledge, otherwise.
(vi) The issuance of the Securities is not subject to any
preemptive rights, rights of first refusal or other similar rights of
any securityholder of the Company arising under the charter or bylaws
of the Company, the Tennessee Business Corporation Act or, to our
knowledge, otherwise.
(vii) Each Subsidiary (as defined below) has been duly
organized and is validly existing as a corporation, limited partnership
or limited liability company, as the case may be, in good standing
under the laws of the jurisdiction of its organization, has power and
authority as a corporation, limited partnership or limited liability
company, as the
A-1
33
case may be, to own, lease and operate its properties and to conduct
its business as described in the Prospectus and is duly qualified as a
foreign corporation, limited partnership or limited liability company,
as the case may be, to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; all of the
issued and outstanding shares of capital stock of each Subsidiary that
is a corporation, all of the issued and outstanding partnership
interests of each Subsidiary that is a limited partnership, and all of
the issued and outstanding limited liability company interests,
membership interests or other similar interests of each Subsidiary that
is a limited liability company have been duly authorized and validly
issued and are fully paid and non-assessable and, to the best of our
knowledge, are owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; and none of the issued and outstanding
shares of capital stock of any Subsidiary that is a corporation, none
of the issued and outstanding partnership interests of any Subsidiary
that is a partnership, and none of the issued and outstanding limited
liability company interests, membership interests or other similar
interests of any Subsidiary that is a limited liability company was
issued in violation of any preemptive rights, rights of first refusal
or other similar rights of any securityholder of such Subsidiary
arising under the Organizational Documents of such Subsidiary, the
Tennessee Business Corporation Act, the Delaware Limited Liability
Company Act [or the laws of the State of Georgia relating to limited
partnerships] or, to our knowledge, otherwise. As used in this opinion,
the term "Subsidiaries" means each entity listed on Schedule C to the
Underwriting Agreement under the caption "Material Subsidiaries".
(viii) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(ix) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act;
the Prospectus has been filed pursuant to Rule 424(b) in the manner and
within the time period required by Rule 424(b); and, to the best of our
knowledge, no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has
been issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or threatened by the Commission.
(x) The Registration Statement, including any Rule 462(b)
Registration Statement, and the Prospectus, in each case excluding the
documents incorporated or deemed to be incorporated by reference
therein, and each amendment or supplement to the Registration Statement
and Prospectus, in each case excluding the documents incorporated or
deemed to be incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements and
supporting schedules and other financial data included therein or
omitted therefrom, as to which we need express no opinion), complied as
to form in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations.
A-2
34
(xi) The documents incorporated or deemed to be
incorporated by reference in the Prospectus (other than the financial
statements and supporting schedules and other financial data included
therein or omitted therefrom, as to which we need express no opinion),
when they were filed with the Commission, complied as to form in all
material respects with the requirements of the 1934 Act and the rules
and regulations of the Commission thereunder.
(xii) The form of certificate used to evidence the Common
Stock complies in all material respects with all applicable
requirements of the Tennessee Business Corporation Act, with any
applicable requirements of the charter and by-laws of the Company and
with any applicable requirements of the Nasdaq Stock Market's National
Market.
(xiii) To the best of our knowledge, except as otherwise
disclosed in the Registration Statement and the Prospectus, there is
not pending or threatened any action, suit, proceeding, inquiry or
investigation to which the Company or any subsidiary is a party, or to
which the property of the Company or any subsidiary is subject, before
or brought by any court or governmental agency or body, domestic or
foreign, which might reasonably be expected to result in a Material
Adverse Effect or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation
of the transactions contemplated in the Underwriting Agreement or the
performance by the Company of its obligations thereunder.
(xiv) The information in the Prospectus under the headings
"Risk Factors--__", "Risk Factors--Our shareholder rights plan, charter
and bylaws and Tennessee law could delay or prevent a change in control
of our company that our shareholders consider favorable", "Risk
Factors--Future sales of our common stock in the public market and the
issuance of shares under our employee benefit plans could adversely
affect our stock price and our ability to raise funds in new stock
offerings", "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Liquidity and Capital Resources",
"Business--Service Marks", "Business--Governmental Regulation",
"Business--Litigation", "Description of Capital Stock" and "__", the
statements in the Company's Annual Report on Form 10-K for its fiscal
year ended December 31, 2000 under the headings "Business--Service
Marks", "Business--Governmental Regulation", "Business--Litigation",
"Risk Factors--We May Incur Costs or Liabilities or Lose Revenues as
the Result of Government Regulation", "Risk Factors--Restaurant
Companies Have Been the Target of Class Actions and Other Lawsuits
Alleging Violations of Federal and State Law", "Risk Factors--We May
Incur Costs or Liabilities as a Result of Litigation and Publicity
Concerning Food Quality, Health and Other Issues that can Cause
Customers to Avoid our Restaurants", "Risk Factors--Our Shareholder
Rights Plan, Charter and Bylaws and Tennessee Law Could Delay or
Prevent a Change in Control of our Company that our Shareholders
Consider Favorable", "Legal Proceedings" and "Management's Discussion
and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources", and the information in
the Registration Statement under Item 15, in each case to the extent
that it constitutes matters of law, summaries of legal matters,
summaries of provisions of the Company's charter or bylaws, the Rights
Agreement or any other instruments or agreements, summaries of
A-3
35
legal proceedings, or legal conclusions, has been reviewed by us and is
correct in all material respects.
(xv) All descriptions in the Registration Statement and
the Prospectus of contracts and other documents to which the Company or
any of its subsidiaries is a party are accurate in all material
respects.
(xvi) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency (other than under the 1933 Act and the
1933 Act Regulations, which have been obtained, or as may be required
under the securities or blue sky laws of the various states, as to
which we need express no opinion), and no authorization, approval, vote
or other consent of any stockholders of the Company, is necessary or
required in connection with the due authorization, execution and
delivery of the Underwriting Agreement or for the offering, issuance,
sale or delivery of the Securities.
(xvii) The execution, delivery and performance of the
Underwriting Agreement and the consummation of the transactions
contemplated in the Underwriting Agreement and the Registration
Statement (including the issuance and sale of the Securities and the
use of the proceeds from the sale of the Securities as described in the
Prospectus under the caption "Use Of Proceeds") and compliance by the
Company with its obligations under the Underwriting Agreement do not
and will not, whether with or without the giving of notice or lapse of
time or both, conflict with or constitute a breach of, or default or
Repayment Event under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
or any subsidiary pursuant to, (x) any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any subsidiary is a party or by
which it or any of them may be bound, or to which any of the property
or assets of the Company or any subsidiary is subject and which has
been filed or incorporated by reference as an exhibit to the
Registration Statement or as an exhibit to any document incorporated or
deemed to be incorporated by reference in the Registration Statement or
(y) any reimbursement agreement, credit agreement, loan agreement,
indenture, pledge agreement, lease agreement, participation agreement
or other instrument or agreement (or any amendment or supplement to any
of the foregoing) relating to any of the Company's bank credit
facilities or synthetic lease facilities (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
have a Material Adverse Effect), nor will such action result in any
violation of the provisions of the Organizational Documents of the
Company or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
respective properties, assets or operations. We have received a
certificate signed by the Chief Financial Officer of the Company to the
effect that the agreements and instruments filed as exhibits to the
Registration Statement or as exhibits to the documents incorporated or
deemed to be incorporated by reference in the Registration Statement
constitute all of the material agreements and instruments to which the
Company or any subsidiary is a party or by which it or any of them may
be bound or to which any of the property or assets of the Company or
any subsidiary is subject.
A-4
36
(xviii) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the 1940 Act.
(xix) To our knowledge, one Right has been issued in
respect of each outstanding share of Common Stock and is evidenced by
the certificate for that share of Common Stock and each such Right has
been duly authorized and validly issued; and one Right will be issued
in respect of each Security issued and sold to the Underwriters and
will be evidenced by the certificate for that Security and each such
Right has been duly authorized, and upon issuance of such Security,
will be validly issued.
Nothing has come to our attention that would lead us to
believe that the Registration Statement or any amendment thereto
(except for financial statements and schedules and other financial data
included or incorporated by reference therein or omitted therefrom, as
to which we need make no statement), at the time the Registration
Statement or any such amendment became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or
supplement thereto (except for financial statements and schedules and
other financial data included or incorporated by reference therein or
omitted therefrom, as to which we need make no statement), at the time
the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the date of this opinion, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
In rendering such opinion, such counsel shall state (A) that
such opinion is limited to matters arising under the laws of the States
of Tennessee, the Limited Liability Company Act of the State of
Delaware and the federal laws of the United States of America and,
solely with respect to the matters relating to Stoney River Legendary
Management L.P., the laws of the State of Georgia relating to limited
partnerships, and (B) that, in rendering their opinion pursuant to the
Underwriting Agreement, ▇▇▇▇▇ & Wood LLP may rely upon such opinion, as
if it were addressed to them. In rendering such opinion, Bass, ▇▇▇▇▇ &
▇▇▇▇ PLC (i) shall state that they have relied, as to matters relating
to the Stoney River Legendary Management L.P. arising under or governed
by the laws of the State of Georgia relating to limited partnerships
upon the opinion of local counsel delivered pursuant to Section 5(b)
(or, if the opinion is being delivered on a Date of Delivery following
the Closing Time, subparagraph (ii) of Section 5(i)) of the
Underwriting Agreement, and, may rely as to matters involving the
application of the laws of any other state upon the opinion of local
counsel satisfactory to the Representatives (all of which opinions
shall be dated the same date as the opinion of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC
and furnished to the Representatives at the same time as such opinion
of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, shall be satisfactory in form and substance
to counsel for the Underwriters, and shall be addressed to them or
shall expressly state that the Underwriters may rely on such opinions
as if they were addressed to them), provided that Bass, ▇▇▇▇▇ & ▇▇▇▇
PLC shall state in their opinion that they believe that they and the
Underwriters are justified in relying upon each such opinion and (ii)
as to matters of fact (but not as to legal conclusions), to the extent
they deem proper, on certificates of
A-5
37
responsible officers of the Company and public officials. Such opinion
shall not state that it is to be governed or qualified by, or that it
is otherwise subject to, any treatise, written policy or other document
relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
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38
EXHIBIT B
[Form of Lock-Up Agreement]
O'Charley's Inc.
Public Offering of Common Stock
__________, 2001
First Union Securities, Inc.
As Representative of the several Underwriters
▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between O'Charley's Inc.,
a Tennessee corporation (the "Company"), and you, as representative or one of
the representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, no par value (the "Common Stock"),
of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of First Union Securities, Inc., offer, sell, contract to sell, pledge
or otherwise dispose of (or enter into any transaction that is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned), directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the Securities and
Exchange Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Securities and Exchange Commission promulgated thereunder
with respect to, any shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for such capital stock, or
publicly announce an intention to effect any such transaction, for a period
beginning on and including the date of the Underwriting Agreement through and
including the date which is 90 days after the date of the Underwriting
Agreement; provided, however, that nothing contained herein shall prohibit the
exercise of stock options by the undersigned under the Company's stock option
plans for employees or directors or other purchases by the undersigned of shares
of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock under the Company's stock
purchase plan for employees or directors, in each case as such plan is in effect
on the date of the
39
Underwriting Agreement, or any transfer to the Company of shares of capital
stock of the Company or any securities convertible into or exercisable or
exchangeable for such capital stock in payment of all or any portion of the
exercise price of any such stock options exercised by the undersigned under such
stock option plans or the purchase price of any such shares of such capital
stock or other such securities purchased by the undersigned under such stock
purchase plan, in each case as such plan is in effect on the date of the
Underwriting Agreement; and provided, further, however, that the undersigned may
donate any shares of capital stock of the Company or any securities convertible
into or exercisable or exchangeable for such capital stock to the undersigned's
immediate family, to a trust the beneficiaries of which are exclusively the
undersigned or members of the undersigned's immediate family, or to charitable
or educational organizations without the prior written consent of First Union
Securities, Inc. if (i) such donation is a bona fide gift, (ii) the undersigned
provides written notice of such gift to First Union Securities, Inc. no later
than three business days prior to such gift, and (iii) the donee executes and
delivers to First Union Securities, Inc., prior to or contemporaneously with
such gift, a letter agreement, in form and substance reasonably satisfactory to
First Union Securities, Inc., in substantially the form of this letter
agreement. For purposes of this paragraph, "immediate family" shall mean a
spouse, lineal descendent, father, mother, brother or sister of the transferor.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
[signature page immediately follows]
B-2
40
In witness whereof, the undersigned has executed and delivered this
letter agreement as of the day and year set forth above.
Yours very truly,
-----------------------------------
Print Name:
B-3
41
Exhibit C
FORM OF GEORGIA COUNSEL OPINION TO BE DELIVERED
PURSUANT TO SECTION 5(b)
(i) Stoney River Legendary Management L.P., a Georgia limited partnership
(the "Subsidiary"), has been duly organized and is validly existing as
a limited partnership in good standing under the laws of the State of
Georgia and has the power and authority as a limited partnership to
own, lease and operate its assets and to conduct its business as
described in the Prospectus; all of the issued and outstanding
partnership interests of the Subsidiary have been duly authorized and
validly issued and are fully paid and non-assessable; and none of the
outstanding partnership interests of the Subsidiary was issued in
violation of any preemptive rights, rights of first refusal or other
similar rights of any securityholder of the Subsidiary arising under
the Organizational Documents of the Subsidiary or the laws of the State
of Georgia.
In rendering such opinion, such counsel shall state that such opinion
is limited to matters arising under the laws of the State of Georgia and that,
in rendering their opinion pursuant to the Underwriting Agreement, Bass, ▇▇▇▇▇ &
▇▇▇▇ PLC may rely upon such opinion of local counsel. In rendering such opinion,
such local counsel may rely as to matters of fact (but not as to legal
conclusions), to the extent they deem proper, on certificates of responsible
officers of the Subsidiary and the Company. Such opinion shall not state that it
is to be governed or qualified by, or that it is otherwise subject to, any
treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
C-1
