EXECUTION COPY
CARMIKE CINEMAS, INC.
COMMON STOCK, PAR VALUE $0.03 PER SHARE
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UNDERWRITING AGREEMENT
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January 29, 2004
Xxxxxxx, Xxxxx & Co.,
As representative of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
UBS Securities LLC,
As Independent Underwriter,
000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Carmike Cinemas Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 3,000,000 shares of Common Stock, par value $0.03 ("Stock") of
the Company and the stockholders of the Company named in Schedule II hereto
(the "Selling Stockholders") propose, severally and not jointly, subject to
the terms and conditions stated herein, to sell to the Underwriters an
aggregate of 1,850,000 shares and, at the election of the Underwriters, up
to 675,000 additional shares of Stock. The aggregate of 4,850,000 shares to
be sold by the Company and the Selling Stockholders is herein called the
"Firm Shares" and the aggregate of 675,000 additional shares to be sold by
the Selling Stockholders is herein called the "Optional Shares". The
3,000,000 Firm Shares to be sold by the Company are herein called the
"Company Shares." The aggregate of 1,850,000 Firm Shares to be sold by the
Selling Stockholders and the Optional Shares are herein collectively called
the "Selling Stockholder Shares." The Firm Shares and the Optional Shares
that the Underwriters elect to purchase pursuant to Section 2 hereof are
herein collectively called the "Shares."
The Company and the Underwriters, in accordance with the requirements
of Rule 2720 ("Rule 2720") of the National Association of Securities
Dealers, Inc. (the "NASD") and subject to the terms and conditions stated
herein, also hereby confirm the engagement of the services of UBS
Securities LLC (in such capacity, and not otherwise, the "Independent
Underwriter") as a "qualified independent underwriter" within the meaning
of Rule 2720(b)(15) of the NASD in connection with the offering and sale of
the Shares.
1. (a) The Company represents and warrants to, and agrees with, each
of the Underwriters and the Independent Underwriter that:
(i) A registration statement on Form S-1 (File No. 333-90028)
( the "Initial Registration Statement") in respect of the Shares has been
filed with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to you, and, excluding exhibits
thereto, to you for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective upon
filing, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been
initiated or, to the Company's knowledge, threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof and deemed by virtue of Rule
430A under the Act to be part of the Initial Registration Statement at the
time it was declared effective, each as amended at the time such part of
the Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; and such final prospectus, in the form first filed pursuant to
Rule 424(b) under the Act, is hereinafter called the "Prospectus");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did 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, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Xxxxx & Co. or by the Independent Underwriter expressly for use
therein or by a Selling Stockholder expressly for use in the preparation of
the answers therein to Item 7 of Form S-1;
(iii) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
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; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through Xxxxxxx, Sachs & Co. or by the Independent
Underwriter expressly for use therein or by a Selling Stockholder expressly
for use in the preparation of the answers therein to Item 7 of Form S-1;
(iv) (A) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, that, individually or in the aggregate, would have a material
adverse effect on the general affairs, business, management, liquidity,
current or future financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect"), otherwise than as set forth or contemplated in
the Prospectus; and (B) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has not
been any change in the capital stock (other than issuances of capital stock
in the ordinary course of business pursuant to the Company's employee
benefit plans) or long-term debt (other than a decrease not in excess of
$23,000,000) of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(v) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not 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 and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions as
would not, individually or in the aggregate, have a Material Adverse Effect
and do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries;
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to
require such qualification, except for such failures to be so qualified or
in good standing that would not, individually or in the aggregate, have a
Material Adverse Effect; and each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation;
(vii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description of the Stock contained in
the Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims;
(viii) The unissued Shares to be issued and sold by the Company to
the Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued and fully paid and non-assessable and will conform
to the description of the Stock contained in the Prospectus;
(ix) The issue and sale of the Shares to be sold by the Company
and the compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated (A)
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, (B) will
not result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or (C) will not result in any
violation of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties, except in the case of clauses
(A) and (C) as would not, individually or in the aggregate, have a Material
Adverse Effect; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Act of the Shares and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters;
(x) Neither the Company nor any of its subsidiaries is (A) in
violation of its Certificate of Incorporation or By-laws or (B) in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound, except in the case of
clause (B) as would not, individually or in the aggregate, have a Material
Adverse Effect;
(xi) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock and under the captions "Description of
Indebtedness," "Our Reorganization" and "Underwriting", insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are accurate and complete in all material respects;
(xii) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect; and, to the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(xiii) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(xiv) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(xv) Ernst & Young LLP who have certified certain financial
statements of the Company and its subsidiaries, and PricewaterhouseCoopers
LLP, each are independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder;
(xvi) The financial statements of the Company, together with the
related schedules and notes, set forth in the Registration Statement,
Preliminary Prospectus and Prospectus comply in all material respects with
the requirements of the Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and fairly present the consolidated financial
condition of the Company and its subsidiaries as of the dates indicated and
the results of operations and changes in cash flows for the periods therein
specified in conformity with generally accepted accounting principles
consistently applied throughout such periods; and no other financial
statements or financial statement schedules are required to be included in
the Registration Statement or Prospectus;
(xvii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management's general or specific
authorization, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii)
access to assets is permitted only in accordance with management's general
or specific authorization, and (iv) the recorded accountability for assets
is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(xviii)Each of the Company and its subsidiaries has filed on a
timely basis all required federal, state, local and foreign income and
franchise tax returns, if any such returns were required to be filed,
through the date hereof, and has paid all taxes (and any related
assessments, fines or penalties) shown as due thereon; no tax deficiency
has been asserted against the Company or any of its subsidiaries, nor does
the Company or any of its subsidiaries know of any tax deficiency which is
likely to be asserted against any such entity which, if determined
adversely to any such entity, could have a Material Adverse Effect; and
such charges, accruals and reserves, as may be required by generally
accepted accounting principles, have been provided for in the financial
statements of such entities in respect of all taxes for all periods as to
which the tax liability of the relevant entity has not been finally
determined, is subject to challenge or remains open to examination by
applicable taxing authorities;
(xix) Except as otherwise set forth the Prospectus, the Company
(i) is in compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) has received all
permits, licenses or other approvals required of it under applicable
Environmental Laws to conduct its business and (iii) is in compliance with
all terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
individually or in the aggregate, have a Material Adverse Effect;
(xx) Except as described in the Prospectus under "Certain
Relationships and Related Party Transactions", there are no transactions
required to be disclosed in the Registration Statement and Prospectus
pursuant to Item 404 of Regulation S-K under the Act; and
(xxi) Each of the Company and its subsidiaries is in material
compliance with all applicable laws respecting employment and employment
practices, terms and conditions of employment and wages and hours and has
not received notice of any unfair labor practice complaint pending before
the National Labor Relations Board; there is not any labor strike,
significant slowdown or stoppage actually pending or, to the Company's
knowledge, threatened against the Company or its subsidiaries and neither
the Company nor any of its subsidiaries has received notice that any
representation petition respecting its employees has been filed with the
National Labor Relations Board; and except as disclosed in the Prospectus,
neither the Company nor any of its subsidiaries is party to a collective
bargaining agreement.
(b) Each of the Selling Stockholders severally, and not jointly,
represents and warrants to, and agrees with, each of the Underwriters and
the Company that:
(i) All consents, approvals, authorizations and orders necessary
for the execution and delivery by such Selling Stockholder of this
Agreement and the Power of Attorney and the Custody Agreement hereinafter
referred to, and for the sale and delivery of the Shares to be sold by such
Selling Stockholder hereunder, have been obtained; and such Selling
Stockholder has full right, power and authority to enter into this
Agreement, the Power-of-Attorney and the Custody Agreement and to sell,
assign, transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder;
(ii) The sale of the Shares to be sold by such Selling
Stockholder hereunder and the compliance by such Selling Stockholder with
all of the provisions of this Agreement, the Power of Attorney and the
Custody Agreement and the consummation of the transactions herein and
therein contemplated (A) will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder is bound or to which any of the property or
assets of such Selling Stockholder is subject, (B) will not result in any
violation of the provisions of the Certificate of Incorporation or By-laws
of such Selling Stockholder if such Selling Stockholder is a corporation,
the Partnership Agreement of such Selling Stockholder if such Selling
Stockholder is a partnership, or other applicable governing document if
such Selling Stockholder is a trust or other entity or (C) will not result
in any violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder, except in the case
of clause (A) as would not, individually or in the aggregate, have an
adverse effect on the ability of such Selling Stockholder to consummate the
transactions contemplated by this Agreement, the Power of Attorney or the
Custody Agreement;
(iii) Such Selling Stockholder has, and immediately prior to each
Time of Delivery (as defined in Section 5 hereof) such Selling Stockholder
will have, good and valid title to the Shares to be sold by such Selling
Stockholder hereunder, free and clear of all adverse claims within the
meaning of the Uniform Commercial Code; and, upon delivery of such Shares
and payment therefor pursuant hereto, good and valid title to such Shares,
free and clear of all adverse claims within the meaning of the Uniform
Commercial Code, will pass to the several Underwriters;
(iv) Such Selling Stockholder as executed and delivered to you a
lock-up agreement in the form attached hereto as Annex I;
(v) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(vi) The Preliminary Prospectus and the Registration Statement
did, and the Prospectus and any further amendments or supplements to the
Registration Statement and the Prospectus, when they become effective or
are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided that this representation and warranty is limited only
to any statements or omissions made in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto made in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder (in its capacity as a
Selling Stockholder) expressly for use therein;
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or at
the First Time of Delivery (as hereinafter defined) a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof);
(viii) Certificates in negotiable form representing all of the
Shares to be sold by such Selling Stockholder hereunder have been placed in
custody under a Custody Agreement, in the form heretofore furnished to you
(the "Custody Agreement"), duly executed and delivered by such Selling
Stockholder to Mellon Investor Services LLC, as custodian (the
"Custodian"), and such Selling Stockholder has duly executed and delivered
a Power of Attorney, in the form heretofore furnished to you (the "Power of
Attorney"), appointing the persons indicated in Schedule II hereto, and
each of them, as such Selling Stockholder's attorneys-in-fact (the
"Attorneys-in-Fact") with authority to execute and deliver this Agreement
on behalf of such Selling Stockholder, to determine the purchase price to
be paid by the Underwriters to the Selling Stockholders as provided in
Section 2 hereof, to authorize the delivery of the Shares to be sold by
such Selling Stockholder hereunder and otherwise to act on behalf of such
Selling Stockholder in connection with the transactions contemplated by
this Agreement and the Custody Agreement; and
(ix) The Shares represented by the certificates held in custody
for such Selling Stockholder under the Custody Agreement are subject to the
interests of the Underwriters hereunder; the arrangements made by such
Selling Stockholder for such custody, and the appointment by such Selling
Stockholder of the Attorneys-in-Fact by the Power of Attorney, are to that
extent irrevocable; the obligations of the Selling Stockholders hereunder
shall not be terminated by operation of law, whether by the death or
incapacity of any individual Selling Stockholder or, in the case of an
estate or trust, by the death or incapacity of any executor or trustee or
the termination of such estate or trust, or in the case of a partnership or
corporation, by the dissolution of such partnership or corporation, or by
the occurrence of any other event; if any individual Selling Stockholder or
any such executor or trustee should die or become incapacitated, or if any
such estate or trust should be terminated, or if any such partnership or
corporation should be dissolved, or if any other such event should occur,
before the delivery of the Shares hereunder, certificates representing the
Shares shall be delivered by or on behalf of the Selling Stockholders in
accordance with the terms and conditions of this Agreement and of the
Custody Agreements; and actions taken by the Attorneys-in-Fact pursuant to
the Powers of Attorney shall be as valid as if such death, incapacity,
termination, dissolution or other event had not occurred, regardless of
whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall
have received notice of such death, incapacity, termination, dissolution or
other event.
2. Subject to the terms and conditions herein set forth, (a) the
Company and each of the Selling Stockholders agree, severally and not
jointly, to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company and each of
the Selling Stockholders, at a purchase price per share of $30.08, the
number of Firm Shares (to be adjusted by you so as to eliminate fractional
shares) determined by multiplying the aggregate number of Shares to be sold
by the Company and each of the Selling Stockholders as set forth opposite
their respective names in Schedule II hereto by a fraction, the numerator
of which is the aggregate number of Firm Shares to be purchased by such
Underwriter, as set forth opposite the name of such Underwriter in Schedule
I hereto and the denominator of which is the aggregate number of Firm
Shares to be purchased by all of the Underwriters from the Company and all
of the Selling Stockholders hereunder and (b) in the event and to the
extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, each of the Selling Stockholders agrees,
severally and not jointly, to sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from each
of the Selling Stockholders, at the purchase price per share set forth in
clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you
so as to eliminate fractional shares) determined by multiplying such number
of Optional Shares by a fraction the numerator of which is the maximum
number of Optional Shares which such Underwriter is entitled to purchase as
set forth opposite the name of such Underwriter in Schedule I hereto and
the denominator of which is the maximum number of Optional Shares that all
of the Underwriters are entitled to purchase hereunder.
The Selling Stockholders, as and to the extent indicated in Schedule
II hereto, hereby grant, severally and not jointly, to the Underwriters the
right to purchase at their election up to 675,000 Optional Shares, at the
purchase price per share set forth in the paragraph above, for the sole
purpose of covering sales of shares in excess of the number of Firm Shares,
provided that the purchase price per Optional Share shall be reduced by an
amount per share equal to any dividends or distributions declared by the
Company and payable on the Firm Shares but not payable on the Optional
Shares. Any such election to purchase Optional Shares shall be made in
proportion to the maximum number of Optional Shares to be sold by each
Selling Stockholder as set forth in Schedule II hereto. Any such election
to purchase Optional Shares may be exercised only by written notice from
you to the Attorneys-in-Fact given within a period of 30 calendar days
after the date of this Agreement and setting forth the aggregate number of
Optional Shares to be purchased and the date on which such Optional Shares
are to be delivered, as determined by you but in no event earlier than the
First Time of Delivery (as defined in Section 5 hereof) or, unless you and
the Attorneys-in-Fact otherwise agree in writing, earlier than two or later
than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus.
4. (a) The Company hereby confirms its engagement of the services of
the Independent Underwriter as, and the Independent Underwriter hereby
confirms its agreement with the Company to render services as, a "qualified
independent underwriter" within the meaning of Rule 2720(b)(15) of the NASD
with respect to the offering and sale of the Shares.
(b) The Independent Underwriter hereby represents and warrants to,
and agrees with, the Company, the Selling Stockholders and the Underwriters
that with respect to the offering and sale of the Shares as described in
the Prospectus:
(i) The Independent Underwriter constitutes a "qualified
independent underwriter" within the meaning of Rule 2720(b)(15);
(ii) The Independent Underwriter has participated in the
preparation of the Registration Statement and the Prospectus and has
exercised the usual standards of "due diligence" in respect thereto;
(iii) The Independent Underwriter has undertaken the legal
responsibilities and liabilities of an underwriter under the Act
specifically including those inherent in Section 11 thereof;
(iv) Subject to the provisions of Section 8 hereof, the
Independent Underwriter will furnish to the Underwriters at the Time of
Delivery a letter, dated the Time of Delivery, in form and substance as
attached hereto as Annex IV to the effect that the Independent Underwriter
recommends that as of the date of execution of this Agreement, the price
for each Share offered to the public be no higher than $32.00 (which should
in no event be considered or relied upon as an indication of the actual per
Share value).
(c) The Company, the Underwriters and the Independent Underwriter
agree to comply in all material respects with all of the requirements of
Rule 2720 applicable to them in connection with the offering and sale of
the Shares. The Company agrees to cooperate with the Underwriters and the
Independent Underwriter to enable the Underwriters to comply with Rule 2720
and the Independent Underwriter to perform the services contemplated by
this Agreement.
5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight
hours' prior notice to the Company and the Selling Stockholders shall be
delivered by or on behalf of the Company and the Selling Stockholders to
Xxxxxxx, Sachs & Co., through the facilities of The Depository Trust
Company ("DTC"), for the account of such Underwriter, against payment by or
on behalf of such Underwriter of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account(s) specified by each of
the Company and the Custodian to Xxxxxxx, Xxxxx & Co. at least forty-eight
hours in advance. The Company will cause the certificates representing the
Shares to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) with respect thereto
at the office of DTC or its designated custodian (the "Designated Office").
The time and date of such delivery and payment shall be, with respect to
the Firm Shares, 9:30 a.m., New York time, on February 4, 2004, or such
other time and date as Xxxxxxx, Sachs & Co., the Company and the Selling
Stockholders may agree upon in writing, and, with respect to the Optional
Shares, 9:30 a.m., New York time, on the date specified by Xxxxxxx, Xxxxx &
Co. in the written notice given by Xxxxxxx, Sachs & Co. of the
Underwriters' election to purchase such Optional Shares, or such other time
and date as Xxxxxxx, Xxxxx & Co., the Company and the Selling Stockholders
may agree upon in writing. Such time and date for delivery of the Firm
Shares is herein called the "First Time of Delivery", such time and date
for delivery of the Optional Shares, if not the First Time of Delivery, is
herein called the "Second Time of Delivery", and each such time and date
for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or
on behalf of the parties hereto pursuant to Section 8 hereof, including the
cross receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 8(l) hereof, will be delivered at the
offices of King & Spalding LLP, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000 (the "Closing Location"), and the Shares will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be held at
the Closing Location at 2:00 p.m., New York City time, on the New York
Business Day next preceding such Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the
purposes of this Section 5, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
6. The Company agrees with each of the Underwriters and with the
Independent Underwriter:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by you promptly after reasonable
notice thereof; to advise you and the Independent Underwriter, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish you and the Independent Underwriter with copies thereof; to
advise you and the Independent Underwriter, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to
time, to furnish the Underwriters and the Independent Underwriter with
written and electronic copies of the Prospectus in New York City in such
quantities as you and the Independent Underwriter may reasonably request,
and, if the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time any
events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such period to amend or
supplement the Prospectus in order to comply with the Act, to notify you
and upon your request to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many written and electronic
copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with sales of
any of the Shares at any time nine months or more after the time of issue
of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written and
electronic copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 165 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder, any securities of the Company that are
substantially similar to the Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that represent
the right to receive, Stock or any such substantially similar securities
(other than pursuant to employee stock option plans existing on, or upon
the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without your prior written
consent;
(f) To furnish to its stockholders within the time periods
specified in the Commission's rules and regulations after the end of each
fiscal year an annual report (including a balance sheet and statements of
income, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants) and,
within the time periods specified in the Commission's rules and regulations
after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of the
Registration Statement), to make available to its stockholders consolidated
summary financial information of the Company and its subsidiaries for such
quarter in reasonable detail;
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders and not
publicly available via XXXXX, and to deliver to you, as soon as they are
available, copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and not publicly available via
XXXXX (such financial statements to be on a consolidated basis to the
extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(i) To use its best efforts to list for quotation the Shares on
the National Association of Securities Dealers Automated Quotations
National Market System ("NASDAQ");
(j) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing either
pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act; and
(k) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, servicemarks and corporate logo for use on the website, if any,
operated by such Underwriter for the purpose of facilitating the on-line
offering of the Shares (the "License"); provided, however, that the License
shall be used solely for the purpose described above, is granted without
any fee and may not be assigned or transferred.
7. The Company and each of the Selling Stockholders covenant and agree
with one another and with the several Underwriters and the Independent
Underwriter that (a) the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Shares
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and
the mailing and delivering of copies thereof to the Underwriters, the
Independent Underwriter and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in
Section 6(b) hereof, including the fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection
with the Blue Sky survey; (iv) all fees and expenses in connection with
listing the Shares on the NASDAQ; (v) the filing fees incident to, and the
fees and disbursements of counsel for the Underwriters in connection with,
securing any required review by the NASD of the terms of the sale of the
Shares; (vi) the cost of preparing stock certificates; (vii) the cost and
charges of any transfer agent or registrar; (viii) any fees and expenses of
the Custodian; (ix) any fees and expenses of the Independent Underwriter,
up to a maximum of $10,000; and (x) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section; and (b) such Selling Stockholder
will pay or cause to be paid all costs and expenses incident to the
performance of such Selling Stockholder's obligations hereunder which are
not otherwise specifically provided for in this Section, including (i) any
fees and expenses of counsel for such Selling Stockholder incurred in
connection with reviewing and otherwise acting in connection with the
Registration Statement (except that the Company shall pay such fees and
expenses incurred by such Selling Stockholder, up to a maximum of $10,000;
provided that, for purposes of this exception to clause (b)(i), GS Capital
Partners III, L.P., GS Capital Partners III Offshore, L.P., Xxxxxxx, Xxxxx
& Co. Xxxxxxxxxxx XxxX, Xxxxxx Xxxxxx Xxxx 0000, L.P. and Stone Street Fund
1998, L.P, collectively, shall be treated as a single Selling Stockholder
and TJT(B)(Bermuda) Investment Company Ltd. and Xxxxx X. Xxxxxxxxx and
Xxxxxxx Xxxxxxxxx, JT TEN, collectively, shall be treated as a single
Selling Stockholder), (ii) any fees and expenses of the Attorneys-in-Fact
for such Selling Stockholder; and (iii) all expenses and taxes incident to
the sale and delivery of the Shares to be sold by such Selling Stockholder
to the Underwriters hereunder. In connection with clause (b) of the
preceding sentence, Xxxxxxx, Xxxxx & Co. agrees to pay New York State stock
transfer tax, and the Selling Stockholder agrees to reimburse Xxxxxxx,
Sachs & Co. for associated carrying costs if such tax payment is not
rebated on the day of payment and for any portion of such tax payment not
rebated. It is understood, however, that, except as provided in this
Section, and Sections 10 and 14 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
8. The respective obligations of the Underwriters and the Independent
Underwriter hereunder as to the Shares to be delivered at each Time of
Delivery shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of the Company and of
the Selling Stockholders herein are, at and as of such Time of Delivery,
true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their respective
obligations hereunder theretofore to be performed, the condition that the
Independent Underwriter shall have furnished to the Underwriters the letter
referred to in clause (iv) of Section 4(b) hereof and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 6(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective
by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no
stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall
have furnished to you such written opinion or letter, dated such Time of
Delivery, with respect to such matters as you may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) King & Spalding LLP, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is attached
as Annex II(a) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, all of the issued shares of capital stock of the Company
(including the Selling Stockholder Shares being delivered at such Time of
Delivery) have been duly and validly authorized and issued and are fully
paid and non-assessable; all of the Company Shares being delivered at such
Time of Delivery have been duly and validly authorized and, upon payment
for the Company Shares in accordance with the terms of this Agreement, will
be validly issued, fully paid and non-assessable; and the Shares conform to
the description of the Stock contained in the Prospectus;
(iii) The Company is duly qualified as a foreign corporation for
the transaction of business and is in good standing in each jurisdiction
listed on Exhibit A to such counsel's opinion;
(iv) Each subsidiary of the Company is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock of each such
subsidiary have been duly and validly authorized and issued, are fully paid
and non-assessable, and are owned directly or indirectly by the Company,
free and clear of all adverse claims within the meaning of the Uniform
Commercial Code (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that they believe that
both you and they are justified in relying upon such opinions and
certificates);
(v) Other than as set forth in the Prospectus, such counsel is
not aware of any legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect; and, to such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company;
(vii) The issue and sale of the Shares being delivered at such
Time of Delivery to be sold by the Company and the compliance by the
Company with all of the provisions of this Agreement and the consummation
of the transactions herein contemplated (A) will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any agreement filed as an exhibit to the
Registration Statement, (B) will not result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the Company or
(C) will not result in any violation of any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or any
of their properties, except in the case of clause (C) as would not,
individually or in the aggregate, have a Material Adverse Effect;
(viii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Company Shares or the consummation
by the Company of the transactions contemplated by this Agreement, except
the registration under the Act of the Company Shares, and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws or any applicable law,
rule or regulation of any foreign jurisdiction in connection with the
purchase and distribution of the Company Shares by the Underwriters;
(ix) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, and under the captions
"Description of Indebtedness," "Our Reorganization" and "Underwriting",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate and complete in all material
respects;
(x) The Company is not an "investment company", as such term
is defined in the Investment Company Act; and
(xi) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such Time
of Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act and the
rules and regulations thereunder.
In addition, such counsel shall state that (i) though such counsel is
not passing on and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in the opinion in
subsection (ix) of this Section 8(c), such counsel has no reason to believe
that, as of its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to such Time of Delivery (other
than the financial statements and notes thereto, the financial statement
schedules and the other financial data included therein, as to which such
counsel need express no opinion) 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,
as of its date, the Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other than the
financial statements and notes thereto, the financial statement schedules
and the other financial data included therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or that, as of such Time of Delivery, either the Registration
Statement or the Prospectus or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and notes thereto, the financial statement schedules
and the other financial data included therein, as to which such counsel
need express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
and such counsel does not know of any amendment to the Registration
Statement required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement
or required to be described in the Registration Statement or the Prospectus
which are not filed or described as required;
(d) The respective counsel for each of the Selling Stockholders, as
indicated in Schedule II hereto, each shall have furnished to you their
written opinion with respect to each of the Selling Stockholders for whom
they are acting as counsel (a draft of each such opinion is attached as
Annex II(b) hereto), dated the First Time of Delivery, in form and
substance satisfactory to you.
(e) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at each Time of Delivery, each of
Ernst & Young LLP and PricewaterhouseCoopers LLP shall have furnished to
you a letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you (the executed copies of the letters
delivered prior to the execution of this Agreement are attached as Annex
III hereto and drafts of the forms of letters to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery are attached as Annex III(a)
hereto);
(f)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus,
and (ii) since the respective dates as of which information is given in the
Prospectus, except as disclosed or contemplated in the Prospectus, there
shall not have been any change in the capital stock (other than issuances
of capital stock in the ordinary course of business pursuant to the
Company's employee benefit plans) or long-term debt (other than a decrease
not in excess of $23,000,000) of the Company or any of its subsidiaries, or
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause (i)
or (ii), is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities;
(h) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or on NASDAQ; (ii) a
suspension or material limitation in trading in the Company's securities on
NASDAQ; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United
States of a national emergency or war or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such
event specified in clause (iv) or (v) in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(i) The Shares at such Time of Delivery shall have been duly listed
for quotation on NASDAQ;
(j) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each director and executive officer
and each Selling Stockholder substantially in the form attached hereto as
Annex I;
(k) The Company shall have complied with the provisions of Section
6(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(l) The Company and the Selling Stockholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of
officers of the Company and of the Selling Stockholders, respectively,
satisfactory to you as to the accuracy of the representations and
warranties of the Company and the Selling Stockholders, respectively,
herein at and as of such Time of Delivery, as to the performance by the
Company and the Selling Stockholders of all of their respective obligations
hereunder to be performed at or prior to such Time of Delivery, and as to
such other matters as you may reasonably request, and the Company shall
have furnished or caused to be furnished certificates as to the matters set
forth in subsections (a) and (f) of this Section.
9. [reserved]
10. (a) The Company and Xxxxxxx X. Xxxxxxx, jointly and severally,
will indemnify and hold harmless each Underwriter and the Independent
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter or the Independent Underwriter, as the
case may be, may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse each
Underwriter or the Independent Underwriter, as the case may be, for any
legal or other expenses reasonably incurred by such Underwriter or the
Independent Underwriter, as the case may be, in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and Xxxxxxx X. Xxxxxxx shall
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through
Xxxxxxx, Xxxxx & Co. or the Independent Underwriter expressly for use
therein; provided further that the liability of Xxxxxxx X. Xxxxxxx pursuant
to this subsection (a) shall not exceed the product of the number of Shares
sold by Xxxxxxx X. Xxxxxxx and the initial public offering price of the
Shares as set forth in the Prospectus. Each of the Company and Xxxxxxx X.
Xxxxxxx agrees that the Independent Underwriter shall have no additional
liability (legal, contractual or otherwise) to the Company or Xxxxxxx X.
Xxxxxxx, respectively, or otherwise as a result of its serving as
Independent Underwriter (except for liability arising out of or based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by the
Independent Underwriter expressly for use therein).
(b) The Company will indemnify and hold harmless UBS Securities
LLC, in its capacity as the Independent Underwriter, against any losses,
claims, damages or liabilities, joint or several, to which the Independent
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any act or failure to act or any alleged act
or failure to act by the Independent Underwriter in connection with any
transaction contemplated by this Agreement or undertaken in preparing for
the purchase, sale and delivery of the Shares, except to the extent that
any such loss, claim, damage or liability results from the gross negligence
or willful misconduct of the Independent Underwriter in performing the
services in its capacity as the Independent Underwriter, and will reimburse
the Independent Underwriter for any legal or other expenses reasonably
incurred by the Independent Underwriter in connection with investigating or
defending any such loss, claim, damage or liability, or any action in
respect thereof, as such expenses are incurred.
(c) Each of GS Capital Partners III, L.P., GS Capital Partners III
Offshore, L.P., Xxxxxxx, Xxxxx & Co. Xxxxxxxxxxx XxxX, Xxxxxx Xxxxxx Xxxx
0000, L.P., Stone Street Fund 1998, L.P., TJT (B) (Bermuda) Investment
Company Ltd., Xxxxx X. Xxxxxxxxx and Xxxxxxx Xxxxxxxxx, JT TEN, Leucadia
National Corporation and Xxxx X. Xxxxxxx, Xx., severally and not jointly,
will indemnify and hold harmless each Underwriter and the Independent
Underwriter, as the case may be, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or the Independent
Underwriter, as the case may be, may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by such
Selling Stockholder (in its capacity as a Selling Stockholder) expressly
for use therein; and will reimburse each Underwriter or the Independent
Underwriter, as the case may be, for any legal or other expenses reasonably
incurred by such Underwriter or the Independent Underwriter, as the case
may be, in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that such Selling
Stockholder shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx, Sachs & Co. or the Independent Underwriter
expressly for use therein; provided further, that the liability of any
Selling Stockholder pursuant to this Section 10(c) shall not exceed the
product of the number of Shares sold by such Selling Stockholder, including
any Optional Shares, and the initial public offering price of the Shares as
set forth in the Prospectus. Each Selling Stockholder set forth in the
first sentence of this Section 10(c) agrees that the Independent
Underwriter shall have no additional liability (legal, contractual or
otherwise) to such Selling Stockholder or otherwise as a result of its
serving as Independent Underwriter (except for liability arising out of or
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by the Independent Underwriter expressly for use therein).
(d) Each Underwriter will indemnify and hold harmless the Company,
the Independent Underwriter and each Selling Stockholder against any
losses, claims, damages or liabilities to which the Company, the
Independent Underwriter or such Selling Stockholder, as the case may be,
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein; and will reimburse the Company, the Independent
Underwriter or each Selling Stockholder, as the case may be, for any legal
or other expenses reasonably incurred by the Company, the Independent
Underwriter or such Selling Stockholder, as the case may be, in connection
with investigating or defending any such action or claim as such expenses
are incurred. Each Underwriter agrees that the Independent Underwriter
shall have no additional liability (legal, contractual or otherwise) to
such Underwriter or otherwise as a result of its serving as Independent
Underwriter (except for liability arising out of or based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by the
Independent Underwriter expressly for use therein).
(e) The Independent Underwriter will indemnify and hold harmless
the Company, each Underwriter and each Selling Stockholder against any
losses, claims, damages or liabilities to which the Company, such
Underwriter or such Selling Stockholder, as the case may be, may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by
the Independent Underwriter expressly for use therein, and will reimburse
the Company, each Underwriter or each Selling Stockholder, as the case may
be, for any legal or other expenses reasonably incurred by the Company,
such Underwriter or such Selling Stockholder, as the case may be, in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(f) Promptly after receipt by an indemnified party under
subsections (a), (b), (c), (d) or (e) above of notice of the commencement
of any action, such indemnified party shall, if a claim in respect thereof
is to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under
such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action 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.
(g) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party under
subsections (a), (b), (c), (d) or (e) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion
as is appropriate to reflect the relative benefits received by each party
to this agreement from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice
required under subsection (f) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of each party to this agreement in connection with
the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company, the Selling Stockholders, the Underwriters and the Independent
Underwriter shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares purchased under this Agreement
(before deducting expenses) received by the Company and the Selling
Stockholders and the total underwriting discounts and commissions received
by the Underwriters, (in each case as set forth in the table on the cover
page of the Prospectus), and the total underwriting discounts and
commissions received by UBS Securities LLC, respectively, bear to the total
proceeds from the sale of the Shares (before deducting expenses) in the
offering. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or the Selling Stockholders on the
one hand or either the Underwriters or the Independent Underwriter on the
other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Company, the Selling Stockholders, the Underwriters and the Independent
Underwriter agree that it would not be just and equitable if contributions
pursuant to this subsection (g) were determined by pro rata allocation
(even if the Underwriters and the Independent Underwriter 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 subsection (g). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (g) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (g), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public, and the Independent
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by UBS
Securities LLC and distributed to the public were offered to the public,
exceeds the amount of any damages which such Underwriter or the Independent
Underwriter, as the case may be, has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' and the Independent Underwriter's obligations in this
subsection (g) to contribute are several in proportion to their (or in the
case of the Independent Underwriter, UBS Securities LLC's), respective
underwriting obligations and not joint.
(h) The obligations of the Company and the Selling Stockholders
under this Section 10 shall be in addition to any liability which the
Company and the respective Selling Stockholders may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter or the Independent Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this
Section 10 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person,
if any, who controls the Company, any Selling Stockholder or the
Independent Underwriter within the meaning of the Act; and the obligations
of the Independent Underwriter under this Section 10 shall be in addition
to any liability which the Independent Underwriter may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the
Company, any Selling Stockholder or any Underwriter within the meaning of
the Act.
11. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another party or
other parties to purchase such Shares on the terms contained herein. If
within thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Shares, then the Company and the Selling
Stockholders shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you
to purchase such Shares on such terms. In the event that, within the
respective prescribed periods, you notify the Company and the Selling
Stockholders that you have so arranged for the purchase of such Shares, or
the Company and the Selling Stockholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the
Selling Stockholders shall have the right to postpone a Time of Delivery
for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and the
Company and the Selling Stockholders as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased does not
exceed one-eleventh of the aggregate number of all the Shares to be
purchased at such Time of Delivery, then the Company and the Selling
Stockholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed
to purchase hereunder at such Time of Delivery and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on
the number of Shares which such Underwriter agreed to purchase hereunder)
of the Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and the
Company and the Selling Stockholders as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased exceeds
one-eleventh of the aggregate number of all of the Shares to be purchased
at such Time of Delivery, or if the Company and the Selling Stockholders
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Shares of a defaulting Underwriter
or Underwriters, then this Agreement (or, with respect to the Second Time
of Delivery, the obligations of the Underwriters to purchase and of the
Selling Stockholders to sell the Optional Shares) shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter
or the Company or the Selling Stockholders, except for the expenses to be
borne by the Company and the Selling Stockholders and the Underwriters as
provided in Section 7 hereof and the indemnity and contribution agreements
in Section 10 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
12. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholders,
the several Underwriters and the Independent Underwriter, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter, the Independent Underwriter or any controlling
person of any Underwriter, the Independent Underwriter or the Company, or
any of the Selling Stockholders, or any officer or director or controlling
person of the Company, or any controlling person of any Selling
Stockholder, and shall survive delivery of and payment for the Shares.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company in subsection (a) of Section 10 hereof, the
representations and warranties in subsections (ii) and (iii) of Section
1(a) hereof and any representation or warranty as to the accuracy of the
Registration Statement or the Prospectus contained in any certificate
furnished by the Company pursuant to Section 8 hereof, insofar as they may
constitute a basis for indemnification for liabilities (other than payment
by the Company of expenses incurred or paid in the successful defense of
any action, suit or proceeding) arising under the Act, shall not extend to
the extent of any interest therein of a controlling person or partner of an
Underwriter who is a director, officer or controlling person of the Company
when the Registration Statement has become effective, except in each case
to the extent that an interest of such character shall have been determined
by a court of appropriate jurisdiction as not against public policy as
expressed in the Act. Unless in the opinion of counsel for the Company the
matter has been settled by controlling precedent, the Company will, if a
claim for such indemnification is asserted, submit to a court of
appropriate jurisdiction the question of whether such interest is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
13. If this Agreement shall be terminated pursuant to Section 11
hereof, neither the Company nor the Selling Stockholders shall then be
under any liability to any Underwriter or the Independent Underwriter
except as provided in Sections 7 and 10 hereof; but, if for any other
reason any Shares are not delivered by or on behalf of the Company and the
Selling Stockholders as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing
by you, including fees and disbursements of counsel, reasonably incurred by
the Underwriters in making preparations for the purchase, sale and delivery
of the Shares not so delivered, but the Company and the Selling
Stockholders shall then be under no further liability to any Underwriter or
the Independent Underwriter in respect of the Shares not so delivered
except as provided in Sections 7 and 10 hereof.
14. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter
made or given by you; and in all dealings with any Selling Stockholder
hereunder, you and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of such Selling
Stockholder made or given by any or all of the Attorneys-in-Fact for such
Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to you as the representative at 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; if to
the Independent Underwriter shall be delivered or sent by mail, telex or
facsimile transmission to UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Syndicate Department; if to any Selling
Stockholder shall be delivered or sent by mail, telex or facsimile
transmission to counsel for such Selling Stockholder at its address set
forth in Schedule II hereto; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company
set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 10(f) hereof
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire or
telex constituting such Questionnaire, which address will be supplied to
the Company or the Selling Stockholders by you on request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
15. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Independent Underwriter, the Company and
the Selling Stockholders and, to the extent provided in Sections 10 and 12
hereof, the officers and directors of the Company and each person who
controls the Company, any Selling Stockholder, the Independent Underwriter
or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares
from any Underwriter shall be deemed a successor or assign by reason merely
of such purchase.
16. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be
an original, but all such counterparts shall together constitute one and
the same instrument.
19. The Company and the Selling Stockholders are authorized, subject
to applicable law, to disclose any and all aspects of this potential
transaction that are necessary to support any U.S. federal income tax
benefits expected to be claimed with respect to such transaction, and all
materials of any kind (including tax opinions and other tax analyses)
related to those benefits, without the Underwriters imposing any limitation
of any kind.
If the foregoing is in accordance with your understanding, please sign
and return to us ten counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, and the Independent
Underwriter, this letter and such acceptance hereof shall constitute a
binding agreement among each of the Underwriters, the Independent
Underwriter, the Company and each of the Selling Stockholders. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement
among Underwriters, the form of which shall be submitted to the Company and
the Selling Stockholders for examination, upon request, but without
warranty on your part as to the authority of the signers thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Stockholder represents by so doing that he has been duly
appointed as Attorney-in-Fact by such Selling Stockholder pursuant to a
validly existing and binding Power-of-Attorney which authorizes such
Attorney-in-Fact to take such action.
Very truly yours,
Carmike Cinemas, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and
Chief Executive Officer
Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, Xx.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
GS Capital Partners III, L.P.
GS Capital Partners III Offshore, X.X.
Xxxxxxx, Xxxxx & Co. Xxxxxxxxxxx XxxX
Xxxxxx Xxxxxx Xxxx 0000, X.X.
Xxxxx Street Fund 1998, L.P.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Attorney-in-Fact
TJT (B) (Bermuda) Investment Company Ltd.
By: /s/ Xxxx X. Xxxxxx XX
---------------------------
Name: Xxxx X. Xxxxxx XX
Title: Attorney-in-Fact
Xxxxx X. Xxxxxxxxx and Xxxxxxx Xxxxxxxxx, JT
TEN
By: /s/ Xxxxx X. Xxxxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
---------------------------
Name:
Title: Attorney-in-Fact
Leucadia National Corporation
By: /s/ Xxxxxx X. Orlando
---------------------------
Name: Xxxxxx X. Orlando
Title: Attorney-in-Fact
Accepted as of the date
hereof at New York, New York:
Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxxxxx, Sachs & Co.
-----------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
UBS Securities LLC
By: /s/ Navid Mahmoodzadeean
-----------------------------------
Name: Navid Mahmoodzadeean
Title: Managing Director
By: /s/ Xxx Xxxx
-----------------------------------
Name: Xxx Xxxx
Title: Associate Director
As Independent Underwriter
SCHEDULE I
NUMBER OF
OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- --------------
Xxxxxxx, Xxxxx & Co. ................................... 1,455,000 202,500
Bear, Xxxxxxx & Co. Inc................................. 1,212,500 168,750
UBS Securities LLC ..................................... 1,212,500 168,750
Xxxxxx Xxxxxxx Corp..................................... 485,000 67,500
Xxxxxxxxx & Company, Inc................................ 485,000 67,500
---------- -----------
Total............................................ 4,850,000 675,000
========== ===========
===============================================================================
SCHEDULE II
NUMBER OF
OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- --------------
The Company............................................ 3,000,000 0
The Selling Stockholder(s):
GS Capital Partners III, L.P.(a).................... 765,200 261,200
GS Capital Partners III Offshore, L.P.(a) .......... 210,362 71,807
Xxxxxxx, Xxxxx & Co. Verwaltungs GmbH(a) .......... 35,326 12,058
Bridge Street Fund 1998, L.P.(a) ................... 26,040 8,889
Stone Street Fund 1998, L.P.(a)..................... 86,281 29,452
TJT (B) (Bermuda) Investment Company Ltd.(b) ....... 226,042 112,086
Xxxxx X. Xxxxxxxxx and Xxxxxxx Xxxxxxxxx, JT TEN(b) 171,240 84,912
Leucadia National Corporation(c).................... 184,394 91,434
Xxxxxxx X. Xxxxxxx(d)............................... 123,277 0
Xxxx X. Xxxxxxx, Xx.(d) ............................ 21,838 3,162
---------- -----------
Total............................................ 4,850,000 675,000
========== ===========
------------
(a) This Selling Stockholder is represented by Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx LLP, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(opinions to be delivered pursuant to Section 8(d) by associate general
counsel of Xxxxxxx, Sachs & Co., Xxxxxx & Xxxxxx (with respect to GS
Capital Partners III Offshore, L.P.) and Pollath + Partners (with respect
to Xxxxxxx, Sachs & Co. Verwaltungs GmbH), and has appointed Xxxxxxx X.
Xxxxxxxx, Xxxxxxxxx X. Xxxxxxxxxx and Xxxxxxx X. Xxxxxxxxxx, and any of
them, as the Attorneys-in-Fact for such Selling Stockholder.
(b) This Selling Stockholder is represented by Mayer, Brown, Xxxx & Maw
LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and has appointed Xxxx X.
Xxxxxx, XX and Xxxxx X. Xxxxxxxxx, and each of them, as the
Attorneys-in-Fact for such Selling Stockholder.
(c) This Selling Stockholder is represented by Weil, Gotshal & Xxxxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and has appointed Xxx X.
Xxxxxxx and Xxxxxx X. Orlando, and each of them, as the Attorneys-in-Fact
for such Selling Stockholder.
(d) This Selling Stockholder is represented by King & Spalding LLP, 000
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, and has appointed Xxxxxxx X.
Xxxxxxx and Xxxx X. Xxxxxxx, Xx., and each of them, as the
Attorneys-in-Fact for such Selling Stockholder.
