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EXHIBIT 1.2
1,140,000 Shares
JP Foodservice, Inc.
Common Stock
FORM OF INTERNATIONAL UNDERWRITING AGREEMENT
November 21, 1996
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, INC.
As Lead Managers for the Several Managers
c/o ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The persons named in Schedule I hereto (the "Selling
Stockholders") propose to sell an aggregate of 1,140,000 shares of common
stock, par value $0.01 per share ("Common Stock"), of JP Foodservice, Inc., a
Delaware corporation (the "Company"), to the several Managers named in Schedule
II hereto (the "Managers") for whom ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇
International, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International and The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Company, Inc. are acting as lead managers (the "Lead Managers"). The 1,140,000
shares of Common Stock to be sold to the Managers by the Selling Stockholders
are hereinafter referred to as the "Shares."
It is understood that the Company and the Selling Stockholders
are concurrently entering into a U.S. Underwriting Agreement, dated the date
hereof (the "U.S. Underwriting Agreement"), providing for the sale by the
Selling Stockholders of 4,560,000 shares of the Common Stock (the "Firm U.S.
Shares") (plus an option granted by certain of the Selling Stockholders to
purchase up to an additional 709,028 shares of Common Stock (the "Additional
Shares") solely for the purpose of covering over-allotments) through
arrangements with certain underwriters in the United States and Canada (the
"U.S. Underwriters"), for whom ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, Inc. and ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, Inc. are acting as representatives (the "Representatives"). All
shares of Common Stock proposed to be offered to U.S. Underwriters pursuant to
the U.S. Underwriting Agreement, including the Firm U.S. Shares and the
Additional Shares, are herein called the "U.S. Shares"; the U.S. Shares and the
Shares, collectively, are herein called the "Underwritten Shares."
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The Company and the Selling Stockholders also understand that
the Lead Managers and the Representatives have entered into an agreement (the
"Agreement Between U.S. Underwriters and Managers") contemplating the
coordination of certain transactions between the Managers and the U.S.
Underwriters and that, pursuant thereto and subject to the conditions set forth
therein, the Managers may purchase from the U.S. Underwriters a portion of the
U.S. Shares or sell to the Managers a portion of the Shares. The Company and
the Selling Stockholders understand that any such purchases and sales between
the Managers and the U.S. Underwriters shall be governed by the Agreement
Between U.S. Underwriters and Managers and shall not be governed by the terms
of this Agreement or the U.S. Underwriting Agreement.
The Company and the Selling Stockholders wish to confirm as
follows their respective agreements with you, in connection with the several
purchases of the Shares by the Managers.
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 under the Act
(the "registration statement"), including prospectuses subject to completion,
relating to the Underwritten Shares. The term "Registration Statement" as used
in this Agreement means the registration statement (including all financial
schedules and exhibits), as amended at the time it becomes effective, or, if
the registration statement became effective prior to the execution of this
Agreement, as supplemented or amended prior to the execution of this Agreement.
If it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to the registration statement will be filed and must
be declared effective before the offering of the Shares may commence, the term
"Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. If an abbreviated
registration statement is prepared and filed with the Commission in accordance
with Rule 462(b) under the Act (an "Abbreviated Registration Statement"), the
term "Registration Statement" as used in this Agreement includes the
Abbreviated Registration Statement. The term "Prospectuses" as used in this
Agreement means the prospectuses in the forms included in the Registration
Statement, or, if the prospectuses included in the Registration Statement omit
information in reliance on Rule 430A under the Act and such information is
included in prospectuses filed with the Commission pursuant to Rule 424(b)
under the Act, the term "Prospectuses" as used in this Agreement means the
prospectuses in the forms included in the Registration Statement as
supplemented by the addition of the Rule 430A information contained in the
prospectuses filed with the Commission pursuant to Rule 424(b). The term
"Prepricing Prospectuses" as used in this Agreement means the prospectuses
subject to completion in the forms included in the registration statement at
the time of the initial filing of the registration statement with the
Commission, and as such prospectuses shall have been amended from time to time
prior to the date of the Prospectuses. Any reference in this Agreement to the
registration statement, the Registration Statement, any Prepricing Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Act, as of the date of the registration statement, the Registration Statement,
such Prepricing Prospectus or the Prospectus, as the case may be, and any
reference to any amendment or supplement to the registration statement, the
Registration Statement, any Prepricing Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act") which, upon
filing, are incorporated by reference therein, as required by paragraph (b) of
Item 12 of Form S-3. As used herein, the term "Incorporated Documents" means
the documents which at the time are incorporated by reference in the
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registration statement, the Registration Statement, any Prepricing Prospectus,
the Prospectus, or any amendment or supplement thereto.
It is understood that two forms of Prepricing Prospectus and
two forms of Prospectus are to be used in connection with the offering and sale
of the Underwritten Shares: a Prepricing Prospectus and a Prospectus relating
to the U.S. Shares that are to be offered and sold in the United States (as
defined herein) or Canada (as defined herein) or to U.S. or Canadian Persons
(the "U.S. Prepricing Prospectus" and the "U.S. Prospectus," respectively), and
a Prepricing Prospectus and a Prospectus relating to the Shares which are to be
offered and sold outside the United States or Canada to persons other than U.S.
or Canadian Persons (the "International Prepricing Prospectus" and the
"International Prospectus," respectively). The U.S. Prospectus and the
International Prospectus are herein collectively called the "Prospectuses," and
the U.S. Prepricing Prospectus and the International Prepricing Prospectus are
herein called the "Prepricing Prospectuses." For purposes of this Agreement:
"U.S. or Canadian Person" means any resident or national of the United States
or Canada, any corporation, partnership or other entity created or organized in
or under the laws of the United States or Canada or any estate or trust the
income of which is subject to United States or Canadian income taxation
regardless of the source of its income (other than the foreign branch of any
U.S. or Canadian Person), and includes any United States or Canadian branch of
a person other than a U.S. or Canadian Person; "United States" means the United
States of America (including the states thereof and the District of Columbia)
and its territories, its possessions and other areas subject to its
jurisdiction; and "Canada" means Canada and its territories, its possessions
and other areas subject to its jurisdiction.
2. Agreements to Sell and Purchase. Subject to such
adjustments as you may determine to avoid fractional shares, each Selling
Stockholder agrees, subject to all the terms and conditions set forth herein,
to sell to each Manager and, upon the basis of the representations, warranties
and agreements of the Company and the Selling Stockholders herein contained and
subject to all the terms and conditions set forth herein, each Manager agrees,
severally and not jointly, to purchase from each Selling Stockholder, at a
purchase price of $__ per share (the "purchase price per share"), the number of
Shares that bears the same proportion to the number of Shares set forth
opposite the name of such Selling Stockholder in Schedule I hereto as the
number of Shares set forth opposite the name of such Manager in Schedule II
hereto (or such number of Shares increased as set forth in Section 13 hereof)
bears to the aggregate number of Shares to be sold by the Selling Stockholders.
Certificates in transferable form for the Shares that each of
the Selling Stockholders agrees to sell pursuant to this Agreement have been
placed in custody with The Bank of New York (the "Custodian") for delivery
under this Agreement pursuant to a Custody Agreement and Power of Attorney (the
"Custody Agreement") executed by each of the Selling Stockholders appointing
two representatives designated by ▇▇▇▇ ▇▇▇ Foodservice Holdings, Inc. and
▇▇▇▇ ▇▇▇ Foundation (collectively, the "▇▇▇▇ ▇▇▇ Selling Stockholders"), as
agents and attorneys-in-fact (the "Attorneys-in-Fact"). Each Selling
Stockholder agrees that the Shares represented by the certificates held in
custody pursuant to the Custody Agreement are subject to the interests of the
Managers. If any Selling Stockholder that is a natural person shall die or be
incapacitated or, with respect to any Selling Stockholder that is not a natural
person, a liquidation, dissolution, winding up or similar event (a
"Liquidation") shall occur before the delivery of the Shares hereunder,
certificates for the Shares of such Selling Stockholder shall be delivered to
the Managers by the Attorneys-in-Fact in accordance with the terms and
conditions of this Agreement and the Custody Agreement as if such death or
incapacity or Liquidation had not occurred, regardless of whether or not the
Attorneys-in-Fact or any Manager shall have received notice of such death,
incapacity or Liquidation. Each Attorney-in-Fact is authorized, on behalf of
each of the Selling
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Stockholders, to execute this Agreement and any other documents necessary or
desirable in connection with the sale of the Shares to be sold hereunder by
such Selling Stockholder, to make delivery of the certificates for such Shares,
to receive the proceeds of the sale of such Shares, to give receipts for such
proceeds, to pay therefrom any expenses to be borne by such Selling Stockholder
pursuant to the terms hereof in connection with the sale and public offering of
such Shares, to distribute the balance thereof to such Selling Stockholder, and
to take such other action as may be necessary or desirable in connection with
the transactions contemplated by this Agreement. Each Attorney-in-Fact agrees
to perform his duties under the Custody Agreement.
3. Terms of Public Offering. The Selling Stockholders have
been advised by you that the Managers propose to make a public offering of
their respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your judgment is
advisable and initially to offer the Shares upon the terms set forth in the
International Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to
the Managers of and payment for the Shares shall be made at the office of ▇▇▇▇▇
▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00 A.M., New York
City time, on November 26, 1996 (the "Closing Date"). The place of closing
for the Shares and the Closing Date may be varied by agreement among you and
the Attorneys-in-Fact.
Certificates for the Shares to be purchased hereunder shall be
registered in such names and in such denominations as you shall request prior
to 9:30 A.M., New York City time, on the second business day preceding the
Closing Date or any Option Closing Date, as the case may be. Such certificates
shall be made available to you in New York City for inspection and packaging
not later than 9:30 A.M., New York City time, on the business day next
preceding the Closing Date or the Option Closing Date, as the case may be. The
certificates evidencing the Shares to be purchased hereunder shall be delivered
to you on the Closing Date against payment of the purchase price therefor by
wire transfer in immediately available funds.
5. Agreements of the Company. The Company agrees with the
several Managers as follows:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or a post-effective
amendment thereto or any Abbreviated Registration Statement to be declared
effective before the offering of the Shares may commence, the Company will
endeavor to cause the Registration Statement or such post-effective amendment
or Abbreviated Registration Statement to become effective as soon as possible
and will advise you promptly and, if requested by you, will confirm such advice
in writing, when the Registration Statement or such post-effective amendment or
Abbreviated Registration Statement has become effective.
(b) The Company will advise you and the ▇▇▇▇ ▇▇▇
Selling Stockholders promptly and, if requested by you or the ▇▇▇▇ ▇▇▇ Selling
Stockholders, will confirm such advice in writing: (i) of any request by the
Commission for amendment of or a supplement to the Registration Statement, any
Prepricing Prospectuses or the Prospectuses or for additional information; (ii)
of the receipt by the Company of any notification with respect to the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement; (iii) of the receipt by the Company of any notification
with respect to the suspension of qualification of the Shares for offering or
sale in any jurisdiction or the initiation of any proceeding for such purpose;
and (iv) within the period of time referred to in paragraph (f) below, of any
change in the Company's condition (financial or other), business, prospects,
properties, net worth or results of operations, or of the happening of
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any event, which makes any statement of a material fact made in the
Registration Statement or the Prospectuses (as then amended or supplemented)
untrue or which requires the making of any additions to or changes in the
Registration Statement or the Prospectuses (as then amended or supplemented) in
order to state a material fact required by the Act to be stated therein or
necessary in order to make the statements therein not misleading (in the case
of the Prospectuses or any such supplement or amendment, in the light of the
circumstances under which they were made), or of the necessity to amend or
supplement the Prospectuses (as then amended or supplemented) to comply with
the Act or any other law. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, the Company
will make every reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(c) The Company will furnish to you and the ▇▇▇▇ ▇▇▇
Selling Stockholders, without charge, (i) five signed copies of the
registration statement as originally filed with the Commission and of each
amendment thereto, including financial statements and all exhibits to the
registration statement, (ii) such number of conformed copies of the
registration statement as originally filed and of each amendment thereto, but
without exhibits, as you may request, (iii) such number of copies of the
Incorporated Documents, without exhibits, as you may request, and (iv) five
copies of the exhibits to the Incorporated Documents.
(d) The Company will not file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus
or, prior to the end of the period of time referred to in the first sentence in
paragraph (f) below, file any document which, upon filing becomes an
Incorporated Document, of which you or the ▇▇▇▇ ▇▇▇ Selling Stockholders shall
not previously have been advised or to which, after you or the ▇▇▇▇ ▇▇▇ Selling
Stockholders shall have received a copy of the document proposed to be filed,
you or the ▇▇▇▇ ▇▇▇ Selling Stockholders shall reasonably object.
(e) Prior to the execution and delivery of this
Agreement, the Company has delivered to you and the ▇▇▇▇ ▇▇▇ Selling
Stockholders, without charge, in such quantities as you have requested, copies
of each form of the International Prepricing Prospectus. The Company consents
to the use, in accordance with the provisions of the Act and with the
securities laws of the jurisdictions in which the Shares are offered by the
several Managers and by dealers, prior to the date of the International
Prospectus, of each International Prepricing Prospectus so furnished by the
Company.
(f) As soon after the execution and delivery of this
Agreement as possible and thereafter from time to time for such period as in
the opinion of counsel for the Managers an International Prospectus is required
by the Act to be delivered in connection with sales by any Manager or dealer,
the Company will expeditiously deliver to each Manager and each dealer, without
charge, as many copies of the International Prospectus (and of any amendment or
supplement thereto) as you may request. The Company consents to the use of the
International Prospectus (and of any amendment or supplement thereto) in
accordance with the provisions of the Act and with the securities laws of the
jurisdictions in which the Shares are offered by the several Managers and by
all dealers to whom Shares may be sold, both in connection with the offering
and sale of the Shares and for such period of time thereafter as the
International Prospectus is required by the Act to be delivered in connection
with sales by any Manager or dealer. If during such period of time any event
shall occur that in the judgment of the Company or in the opinion of counsel
for the Managers or the ▇▇▇▇ ▇▇▇ Selling Stockholders is required to be set
forth in the International Prospectus (as then amended or supplemented) or
should be set forth therein in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if it
is necessary to supplement or amend the International Prospectus (or to
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file under the Exchange Act any document which, upon filing, becomes an
Incorporated Document) in order to comply with the Act or any other law, the
Company will forthwith prepare and, subject to the provisions of paragraph (d)
above, file with the Commission an appropriate supplement or amendment thereto
(or to such document), and will expeditiously furnish to the Managers and
dealers and the ▇▇▇▇ ▇▇▇ Selling Stockholders a reasonable number of copies
thereof. In the event that the Company and you, as Lead Managers for the
several Managers, agree that the International Prospectus should be amended or
supplemented, the Company, if requested by you, will promptly issue a press
release announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) The Company will cooperate with you and with
counsel for the Managers in connection with the registration or qualification
of the Shares for offering and sale by the several Managers and by dealers
under the securities laws of such jurisdictions as you may designate and will
file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided
that in no event shall the Company be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take any action which
would subject it to service of process in suits, other than those arising out
of the offering or sale of the Shares, or to taxation in any jurisdiction where
it is not now so subject.
(h) The Company will make generally available to its
security holders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing not later than the first day of the
fiscal quarter following the fiscal quarter that includes the Closing Date, as
soon as practicable after the end of such period, but in any event not later
than 120 days after the end of such period, which consolidated earnings
statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158
thereunder.
(i) During the period of three years hereafter, the
Company will furnish to the Lead Managers (i) as soon as practicable after they
are available, copies of each report of the Company mailed to stockholders or
filed with the Commission, and (ii) from time to time such other information
concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be
terminated after execution pursuant to any provisions hereof (otherwise than
pursuant to the second paragraph of Section 13 hereof or by notice given by you
terminating this Agreement pursuant to Section 13 or Section 14 hereof) or if
this Agreement shall be terminated by the Managers because of any failure or
refusal on the part of the Company or any of the Selling Stockholders to comply
with the terms or fulfill any of the conditions of this Agreement, the Company
agrees to reimburse the Lead Managers for all reasonable out-of-pocket expenses
(including reasonable fees and expenses of counsel for the Managers) incurred
by you in connection herewith.
(k) If Rule 430A of the Act is employed, the Company
will timely file the Prospectuses pursuant to Rule 424(b) under the Act and
will advise you of the time and manner of such filing.
(l) Except pursuant to this Agreement or as
otherwise provided in this paragraph (1), the Company will not offer, sell,
contract to sell or otherwise dispose of any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or grant any
options or warrants to purchase Common Stock, for a period of 90 days after the
date of the Prospectuses, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. This paragraph (l) shall not prohibit or limit any of the following: (i)
the grant of options to purchase Common Stock or the making of other awards
pursuant to the Company's 1994 Stock
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Incentive Plan or the grant of options to purchase Common Stock pursuant to the
Company's Stock Option Plan for Outside Directors; or (ii) the offering,
issuance or sale of Common Stock pursuant to the Company's 1994 Stock Incentive
Plan, Stock Option Plan for Outside Directors, Employee Stock Purchase Plan or
401(k) Retirement Plan.
(m) The Company has furnished or will furnish to you
"lock-up" letters, in form and substance satisfactory to you, signed by (i)
certain executive officers of the Company set forth on Schedule III hereto, and
(ii) the Selling Stockholders (collectively, the "Lock-Up Letters").
(n) Except as stated in this Agreement and in the
U.S. Underwriting Agreement and the Prepricing Prospectuses and the
Prospectuses, the Company has not taken, nor will it take, directly or
indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
6. Agreements of the Selling Stockholders. Each of the
Selling Stockholders, severally and not jointly, agrees with the several
Managers as follows:
(a) Such Selling Stockholder will cooperate to the
extent necessary to cause the Registration Statement or any post-effective
amendment thereto to become effective at the earliest possible time.
(b) Such Selling Stockholder will pay all Federal
and other taxes, if any, on the transfer or sale of the Shares being sold by
the Selling Stockholder to the Managers.
(c) Such Selling Stockholder will do or perform all
things required to be done or performed by the Selling Stockholder prior to the
Closing Date to satisfy the conditions set forth in Sections 10(i) and 10(j)
hereof.
(d) Such Selling Stockholder has executed or will
execute a Lock-Up Letter as provided in Section 5(m) hereof and will not sell,
contract to sell or otherwise dispose of any Common Stock, except for the sale
of Underwritten Shares to the Managers and Underwriters pursuant to this
Agreement and the U.S. Underwriting Agreement, prior to the expiration of 90
days after the date of the Prospectus, without the prior written consent of
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
(e) Except as stated in this Agreement, the U.S.
Underwriting Agreement and in the Prepricing Prospectuses and the Prospectuses,
such Selling Stockholder has not taken, and will not take, directly or
indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(f) Such Selling Stockholder will advise you
promptly, and if requested by you, will confirm such advice in writing, within
the period of time referred to in Section 5(f) hereof, of any change in the
information furnished by or on behalf of such Selling Stockholder expressly for
use in the Registration Statement and the Prospectuses which comes to the
attention of such Selling Stockholder that suggests that any statement made in
the Registration Statement or the Prospectuses (as then amended or
supplemented, if amended or supplemented) is or may be untrue in any material
respect or that the Registration Statement or
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Prospectuses (as then amended or supplemented, if amended or supplemented)
omits or may omit to state a material fact or a fact necessary to be stated
therein in order to make the statements therein not misleading in any material
respect.
7. Representations and Warranties of the Company. The
Company represents and warrants to each Manager that:
(a) Each International Prepricing Prospectus
included as part of the registration statement as originally filed or as part
of any amendment or supplement thereto, or filed pursuant to Rule 424 under the
Act, complied when so filed in all material respects with the provisions of the
Act. The Commission has not issued any order preventing or suspending the use
of any Prepricing Prospectus.
(b) The Company and the transactions contemplated by
this Agreement and the U.S. Underwriting Agreement meet the requirements for
use of Form S-3 under the Act. The registration statement in the form in which
it became or becomes effective and also in such form as it may be when any
post-effective amendment thereto or any Abbreviated Registration Statement
shall become effective and the Prospectuses and any supplement or amendment
thereto when filed with the Commission under Rule 424(b) under the Act,
complied or will comply in all material respects with the provisions of the Act
and did not or will not at any such times contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (in the case of the
Prospectuses or any supplement or amendment thereto, in the light of the
circumstances under which they were made); except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectuses made in reliance upon and in conformity with
information (i) relating to any Selling Stockholder furnished to the Company in
writing by or on behalf of such Selling Stockholder expressly for use therein,
or (ii) relating to any Manager furnished to the Company in writing by or on
behalf of a Manager through the Lead Managers or by an Underwriter through the
Representatives expressly for use therein.
(c) The Incorporated Documents heretofore filed,
when they were filed (or, if any amendment with respect to any such document
was filed, when such amendment was filed), conformed in all material respects
with the requirements of the Exchange Act, any further Incorporated Documents
so filed will, when they are filed, conform in all material respects with the
requirements of the Exchange Act; no such document when it was filed (or, if an
amendment with respect to any such document was filed, when such amendment was
filed), contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and no such further document, when it is
filed, will contain an untrue statement of a material fact or will omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading.
(d) All the outstanding shares of Common Stock of
the Company have been duly authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar rights; and the capital
stock of the Company conforms to the description thereof in the Registration
Statement and the Prospectuses.
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(e) The Company is a corporation duly organized and
validly existing in good standing under the laws of the State of Delaware with
full corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectuses, and is duly registered and qualified to conduct its business and
is in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify would not
have a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and the
Subsidiaries (as hereinafter defined) taken as a whole.
(f) All the Company's significant subsidiaries (as
defined in Rule 1-02(w) of Regulation S-X and as required by Item 601(b)(21) of
Regulation S-K) (collectively, the "Subsidiaries") as of June 29, 1996 are
listed in an exhibit to the Company's Annual Report on Form 10-K which is
incorporated by reference into the Registration Statement. Each Subsidiary is
a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, with full corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectuses, and is duly
registered and qualified to conduct its business and is in good standing in
each jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure so to register or qualify would not have a material adverse effect on
the condition (financial or other), business, properties, net worth or results
of operations of the Company and the Subsidiaries taken as a whole. All the
outstanding shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable, and are owned
by the Company directly, or indirectly through one of the other Subsidiaries,
free and clear of any lien, adverse claim, security interest, equity or other
encumbrance.
(g) There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened, against the Company or
any of the Subsidiaries, or to which the Company or any of the Subsidiaries, or
any of their respective properties is subject, that are required by the Act to
be described in the Registration Statement or the Prospectuses but are not
described as required, and there are no agreements, contracts, indentures,
leases or other instruments that are required by the Act to be described in the
Registration Statement or the Prospectuses or required by the Act or the
Exchange Act to be filed as an exhibit to the Registration Statement or any
Incorporated Document that are not described or filed as required by the Act or
the Exchange Act.
(h) Neither the Company nor any of the Subsidiaries
is in violation of its certificate or articles of incorporation or by-laws, or
other organizational documents, or of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries or of any decree of any court or governmental agency or body
having jurisdiction over the Company or any of the Subsidiaries, or in default
in the performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
agreement, indenture, lease or other instrument to which the Company or any of
the Subsidiaries is a party or by which any of them or any of their respective
properties may be bound, which default or violation (other than of its
certificate of incorporation or articles of incorporation or by-laws, or other
organizational documents) could reasonably be expected to have a material
adverse effect on the condition (financial or other), business, net worth, or
results of operations of the Company and the Subsidiaries taken as a whole.
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(i) Neither the sale of the Shares, the execution,
delivery or performance of this Agreement or the U.S. Underwriting Agreement by
the Company nor the consummation by the Company of the transactions
contemplated hereby or thereby (i) requires any consent, approval,
authorization or other order of or registration or filing with, any court,
regulatory body, administrative agency or other governmental body, agency or
official by or on behalf of the Company (except such as may be required for the
registration of the Underwritten Shares under the Act and compliance with the
securities or Blue Sky laws of various jurisdictions, all of which have been or
will be effected in accordance with this Agreement) or conflicts or will
conflict with or constitutes or will constitute a breach of, or a default
under, the certificate or articles of incorporation or by-laws, or other
organizational documents, of the Company or any of the Subsidiaries or (ii)
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, any agreement, indenture, lease or other instrument to
which the Company or any of the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound, or violates or will violate
any statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Company or any of the Subsidiaries or any of their respective
properties, or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them may be bound or to which any of the
property or assets of any of them is subject.
(j) The accountants, Price Waterhouse LLP, who have
certified or shall certify the financial statements included or incorporated by
reference in the Registration Statement and the Prospectuses (or any amendment
or supplement thereto) are independent public accountants as required by the
Act.
(k) The consolidated historical and pro forma
financial statements, together with related schedules and notes, set forth in
the Prospectuses and the Registration Statement (and any amendment or
supplement thereto), comply as to form in all material respects with the
requirements of the Act. Such historical financial statements and related
schedules and notes present fairly the consolidated financial position of the
Company and the Subsidiaries at the respective dates indicated and the results
of their operations and their cash flows for the respective periods indicated
in accordance with generally accepted accounting principles ("GAAP")
consistently applied (except as set forth in such financial statements)
throughout such periods. Such pro forma financial statements and related
schedules and notes have been prepared on a basis consistent with such
historical statements, except for the pro forma adjustments specified therein,
and give effect to assumptions made on a reasonable basis and present fairly
the historical and proposed transactions contemplated by the Prospectuses and
this Agreement and the U.S. Underwriting Agreement. The other historical and
pro forma financial and statistical information and data included in the
Prospectuses and the Registration Statement are accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company.
(l) The execution and delivery of, and the
performance by the Company of its obligations under this Agreement and the U.S.
Underwriting Agreement have been duly and validly authorized by the Company,
and each of this Agreement and the U.S. Underwriting Agreement has been duly
executed and delivered by the Company and constitutes the valid and legally
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except that (i) rights to indemnity and contribution hereunder
and under the U.S. Underwriting Agreement may be limited by federal or state
securities laws or by general equitable principles and (ii) the enforceability
of this Agreement and the U.S. Underwriting Agreement may be limited by the
effects of bankruptcy, insolvency, reorganization,
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moratorium and other similar laws, relating to or affecting creditors' rights
generally and by the application of general equitable principles and the
discretion of a court in which any proceeding is brought.
(m) Except as disclosed in the Registration
Statement and the Prospectuses (or any amendment or supplement thereto),
subsequent to the respective dates as of which such information is given in the
Registration Statement and the Prospectuses (or any amendment or supplement
thereto), neither the Company nor any of the Subsidiaries has incurred any
liability or obligation, direct or contingent, or entered into any transaction,
not in the ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole, and there has not been any change in the capital
stock, or material increase in the short-term debt or long-term debt, of the
Company or any of the Subsidiaries, or any material adverse change, or any
development involving or which may reasonably be expected to involve, a
prospective material adverse change, in the condition (financial or other),
business, net worth or results of operations of the Company and the
Subsidiaries taken as a whole.
(n) Each of the Company and the Subsidiaries has
good and marketable title to all property (real and personal) described in the
Prospectuses as being owned by it, free and clear of all liens, claims,
security interests or other encumbrances except such as are disclosed in the
Registration Statement and the Prospectuses or in a document filed as an
exhibit to the Registration Statement and all the property described in the
Prospectuses as being held under lease by each of the Company and each
Subsidiary is held by it under valid, subsisting and enforceable leases.
(o) The Company has not distributed and, prior to
the later to occur of (i) the Closing Date and (ii) completion of the
distribution of the Shares, will not distribute any offering material in
connection with the offering and sale of the Shares other than the Registration
Statement, the Prepricing Prospectuses, the Prospectuses or other materials, if
any, permitted by the Act.
(p) Each of the Company and each Subsidiary has such
permits, licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own its properties and to conduct
its business in the manner described in the Prospectuses, subject to such
qualifications as may be set forth in the Prospectuses; the Company and each of
the Subsidiaries has fulfilled and performed all its material obligations with
respect to such permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such permit,
subject in each case to such qualification as may be set forth in the
Prospectuses; and, except as described in the Prospectuses, none of such
permits contains any restriction that is materially burdensome to the Company
or any of the Subsidiaries.
(q) 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 GAAP 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.
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(r) To the Company's knowledge, neither the Company
nor any of its Subsidiaries nor any employee or agent of the Company or any
Subsidiary has made any payment of funds of the Company or any Subsidiary or
received or retained any funds in violation of any law, rule or regulation,
which payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectuses.
(s) Each of the Company and each Subsidiary has
filed all tax returns required to be filed, which returns are complete and
correct, and neither the Company nor any Subsidiary is in default in the
payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto.
(t) No holder of any security of the Company has any
right which has not been waived to require registration of shares of Common
Stock or any other security of the Company because of the filing of the
registration statement or consummation of the transactions contemplated by this
Agreement or the U.S. Underwriting Agreement.
(u) The Company and the Subsidiaries own or possess
all patents, trademarks, trademark registration, service marks, service ▇▇▇▇
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights described in the Prospectuses as being owned by them or any of them or
necessary for the conduct of their respective businesses, and the Company is
not aware of any claim to the contrary or any challenge by any other person to
the rights of the Company and the Subsidiaries with respect to the foregoing.
(v) The Company is not now, and after the sale of
the Shares will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(w) There are no labor disputes with the Company's
employees or with employees of the Subsidiaries that exist or, to the Company's
knowledge, are imminent that could materially adversely affect the Company and
the Subsidiaries taken as a whole, and the Company is not aware of any existing
or imminent labor disturbance by any of its or the Subsidiaries' principal
suppliers, contractors or customers that could be expected to materially
adversely affect the condition (financial or other), business, net worth or
results of operations of the Company and the Subsidiaries taken as a whole.
(x) With respect to each employee benefit plan,
program and arrangement (including, without limitation, any "employee benefit
plan" as defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA")), maintained or contributed to by the Company or
the Subsidiaries, or with respect to which the Company or the Subsidiaries
could incur any liability under ERISA (collectively, the "Benefit Plans"), no
event has occurred and there exists no condition or set of circumstances in
connection with which the Company or the Subsidiaries could be subject to any
liability under the terms of such Benefit Plan or applicable law (including,
without limitation, ERISA and the Internal Revenue Code of 1986, as amended
(the "Code")) that could materially adversely affect the condition (financial
or other), business, net worth or results of operations of the Company and the
Subsidiaries taken as a whole.
(y) The Company and the Subsidiaries are (i) (A) in
full compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and
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safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants ("Environmental Laws"), (B) have received all permits, licenses
or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses, and (C) and are in full 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, singly or in the
aggregate, have a material adverse effect on the Company and its Subsidiaries
taken as a whole; (ii) except as disclosed in the Registration Statement and
the Prospectuses, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the release, threatened release, or disposal of any material (including
radiation and noise), that could form the basis of any claim (whether by a
governmental authority or other person or entity) under Environmental Laws for
cleanup costs, damages, penalties, fines, or otherwise, against any of the
Company or the Subsidiaries, or against any person or entity whose liability
for such claim may have been retained by any of the Company or the
Subsidiaries, whether by contract or law; and (iii) the Company and the
Subsidiaries have fully disclosed to the Managers and their counsel all
studies, reports, assessments, audits and other information in their possession
or control relating to any pollution or release, threatened release or disposal
of materials regulated under Environmental Laws on, at, under, from or
transported from any of their currently or formerly owned, leased or operated
properties, including, without limitation, all information relating to
underground storage tanks and asbestos containing materials. Except for the
action captioned Delta Quarries & Disposal, Inc. v. ABC ▇▇▇▇ Sales, Inc. et
al., with respect to which a Subsidiary executed a settlement agreement with
the plaintiffs in October 1992, neither the Company nor any of the Subsidiaries
has been named as a "potentially responsible party" under the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended
("CERCLA").
(z) The Company has complied with all provisions of
Florida Statutes, Section 517.075, relating to issuers doing business with
Cuba.
8. Representations and Warranties of the Selling
Stockholders. Each Selling Stockholder, severally and not jointly, represents
and warrants to each Manager that:
(a) Such Selling Stockholder now has, and on the
Closing Date will have, valid title to the Shares to be sold by such Selling
Stockholder, free and clear of any lien, claim, security interest or other
encumbrance, including, without limitation, any restriction on transfer.
(b) Such Selling Stockholder now has, and on the
Closing Date will have, full legal right, power and authorization, and any
approval required by applicable law, to sell, assign, transfer and deliver such
Shares in the manner provided in this Agreement and in the U.S. Underwriting
Agreement, and upon delivery of and payment for such Shares hereunder, the
several Managers will acquire valid title to such Shares free and clear of any
lien, claim, security interest or other encumbrance.
(c) This Agreement, the U.S. Underwriting Agreement
and the Custody Agreement have been duly authorized, executed and delivered by
or on behalf of such Selling Stockholder and are the valid and binding
agreements of such Selling Stockholder enforceable against such Selling
Stockholder in accordance with their terms, except as to rights to indemnity
and contribution thereunder may be limited by federal or state securities laws
or the public policy underlying such laws, and subject to the qualification
that
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the enforceability of the Company's obligations hereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and
other laws relating to or affecting creditors' rights generally and by general
equitable principles.
(d) Neither the execution and delivery of this
Agreement, the U.S. Underwriting Agreement or the Custody Agreement by or on
behalf of such Selling Stockholder nor the consummation of the transactions
herein or therein contemplated by or on behalf of such Selling Stockholder
requires any consent, approval, authorization or order of, or filing or
registration with, any court, regulatory body, administrative agency or other
governmental body, agency or official (except such as may be required under the
Act and the Exchange Act or such as may be required under the securities laws
governing the purchase and distribution of the Shares) or conflicts or will
conflict with or constitutes or will constitute a breach of, or default under,
or violates or will violate any agreement, indenture, or other instrument to
which such Selling Stockholder is a party or by which such Selling Stockholder
is or may be bound or to which any of such Selling Stockholder's property or
assets is subject, or any statute, law, rule, regulation, ruling, judgment,
injunction, order or decree applicable to such Selling Stockholder or to any
property or assets of such Selling Stockholder.
(e) The Registration Statement and the Prospectuses,
insofar as they relate to such Selling Stockholder, do not and will not contain
an untrue material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
(f) Such Selling Stockholder has not taken, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares, except for the lock-up
arrangements described in the Prospectuses.
9. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each of you and each other Manager, each Selling
Stockholder, each officer, director, employee, advisor, agent and partner of
each Selling Stockholder and each person, if any, who controls any Selling
Stockholder or any Manager within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act (each such person, an "Indemnitee") (i) from
and against any and all losses, claims, damages, liabilities and expenses
whatsoever (including reasonable costs of investigation), joint or several, to
which such Indemnitee may become subject under the Securities Act or the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
any International Prepricing Prospectus or in the Registration Statement or the
International Prospectus or in any amendment or supplement thereto, or arise
out of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of the International Prepricing Prospectus
or the International Prospectus or any amendment or supplement thereto, in the
light of the circumstances in which they were made), (ii) from and against any
and all losses, claims, damages, liabilities and expenses whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, if
such settlement is effected with the written consent of the Company, and (iii)
from and against any and all expenses whatsoever, as incurred (including
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reasonable fees and disbursements of counsel chosen by the Indemnitee),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or (ii) above;
further provided, however, that the Company shall not be required to indemnify
and hold harmless or reimburse an Indemnitee to the extent that any such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission which
has been made therein or omitted therefrom in reliance upon and in conformity
with the information relating to such Indemnitee furnished in writing to the
Company by or on behalf of such Indemnitee through you expressly for use in
connection therewith; provided, however, that the indemnification contained in
this paragraph (a) with respect to any International Prepricing Prospectus
shall not inure to the benefit of any Manager (or to the benefit of any person
controlling such Manager) on account of any such loss, claim, damage, liability
or expense arising from the sale of the Shares by such Manager to any person if
a copy of the International Prospectus shall not have been delivered or sent to
such person within the time required by the Act and the untrue statement or
alleged untrue statement or omission or alleged omission of a material fact
contained in such International Prepricing Prospectus was corrected in the
International Prospectus, provided that the Company has delivered the
International Prospectus to the several Managers in requisite quantity on a
timely basis to permit such delivery or sending. The foregoing indemnity
agreement shall be in addition to any liability which the Company may otherwise
have.
(b) If any action, suit or proceeding shall be
brought against any person (an "indemnified party") in respect of which
indemnity may be sought against any party under paragraph (a), (c) or (d)
hereof, such indemnified party shall promptly notify the parties against whom
indemnification is being sought (the "indemnifying parties") and, unless in
such indemnified party's reasonable judgment a conflict of interest may exist
between such indemnified party and such indemnifying parties with respect to
such claim, such indemnifying parties shall assume the defense thereof,
including the employment of counsel reasonably acceptable to the indemnified
party and payment of all fees and expenses. Such indemnified party shall have
the right to employ separate counsel in any such action, suit or proceeding and
to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying parties have agreed in writing to pay such fees and expenses, (ii)
the indemnifying parties have failed to assume the defense and employ counsel
or (iii) the named parties to any such action, suit or proceeding (including
any impleaded parties) include both such indemnified party and the indemnifying
parties and such indemnified party shall have been advised by its counsel that
representation of such indemnified party and any indemnifying party by the same
counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them (in which
case the indemnifying parties shall not have the right to assume the defense of
such action, suit or proceeding on behalf of such indemnified party). It is
understood, however, that the indemnifying parties shall, in connection with
any one such action, suit or proceeding or separate but substantially similar
or related actions, suits or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of only one separate firm of attorneys (in addition to any
local counsel) at any time for all such indemnified parties not having actual
or potential differing interests among themselves, which firm shall be
designated in writing by such indemnified parties, and that all such fees and
expenses shall be reimbursed as they are incurred. The indemnifying parties
shall not be liable for any settlement of any such action, suit or proceeding
effected without their written consent (which consent shall not be
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unreasonably withheld), but if settled with such written consent, or if there
be a final judgment for the plaintiff in any such action, suit or proceeding,
the indemnifying parties agree to indemnify and hold harmless any indemnified
party, to the extent provided in the preceding paragraph, from and against any
loss, claim, damage, liability or expense by reason of such settlement or
judgment.
(c) Each Selling Stockholder agrees, severally and
not jointly, to indemnify and hold harmless each of you and each other Manager,
each person, if any, who controls any Manager within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, the Company, its directors,
advisors, agents, officers and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act (each such person, a "Selling Stockholder Indemnitee"), each to the same
extent as the foregoing indemnity from the Company to each Indemnitee pursuant
to paragraph (a) above, against all losses, claims, damages, liabilities or
expenses to which any such Selling Stockholder Indemnitee may become subject,
under the Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities and expenses (or actions in respect
thereof) arise out of or are based on any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
International Prepricing Prospectus or the International Prospectus or in any
amendment or supplement thereto, or arise out of or are based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading (in the case
of the International Prepricing Prospectus or the International Prospectus or
any amendment or supplement thereto, in the light of the circumstances in which
they were made), in each case to the extent, but only to the extent, that such
untrue statement or omission or alleged untrue statement or omission was made
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Selling Stockholder expressly for use in the
Registration Statement, the International Prepricing Prospectus or the
International Prospectus, or any amendment or supplement thereto. If any
action, suit or proceeding shall be brought against any Selling Stockholder
Indemnitee in respect of which indemnity may be sought against any Selling
Stockholder pursuant to this paragraph (c), such Selling Stockholder shall have
the rights and duties given to the indemnifying parties by paragraph (b) above
(except that if the Company shall have assumed the defense thereof, such
Selling Stockholder shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at such Selling Stockholder's expense), and
each Selling Stockholder Indemnitee shall have the rights and duties given to
the indemnified party by paragraph (b) of this Section 9. The foregoing
indemnity agreement shall be in addition to any liability which any Selling
Stockholder may otherwise have.
(d) Each Manager agrees, severally and not jointly,
to indemnify and hold harmless the Company, each Selling Stockholder and their
respective directors, officers, employees and agents and any person who
controls the Company or such Selling Stockholder within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, to the same extent as the
foregoing indemnity from the Company and the Selling Stockholders to each
Manager, but only with respect to information relating to such Manager
furnished in writing by or on behalf of such Manager through you expressly for
use in the Registration Statement, the International Prepricing Prospectus or
the International Prospectus, or any amendment or supplement thereto. If any
action, suit or proceeding shall be brought against the Company, any directors,
officers, employees or agents of the Company or any Selling Stockholder, or any
such controlling person based on the Registration Statement, the International
Prepricing Prospectus or the International Prospectus, or any amendment or
supplement thereto, and in respect of which indemnity may be sought against any
Manager pursuant to this paragraph (d), such Manager shall have the rights and
duties given to the indemnifying
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parties by paragraph (b) above (except that if the Company or the Selling
Stockholders shall have assumed the defense thereof, such Manager shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at
such Manager's expense), and the Company, the directors, officers, employees
and agents of the Company or any Selling Stockholder and any such controlling
person shall have the rights and duties given to the indemnified party by
paragraph (b) above. The foregoing indemnity agreement shall be in addition to
any liability which any Manager may otherwise have.
(e) If the indemnification provided for in this
Section 9 is unavailable to an indemnified party under paragraph (a), (c) or
(d) above (other than by reason of the exceptions provided therein) in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then an indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by each
party from the offering of the Shares and the relative fault of each party in
connection with statements or omissions that resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Managers on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Stockholders bear
to the total underwriting discounts and commissions received by the Managers,
in each case as set forth in the table on the cover page of the International
Prospectus. The relative fault of each party 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 such party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Notwithstanding the foregoing, no Selling Stockholder
will be required to contribute any amount in excess of the amount such Selling
Stockholder would have been required to pay to an indemnified party if the
indemnification provided for in Section 9(c) were available.
(f) The Company, the Selling Stockholders and the
Managers agree that it would not be just and equitable if contribution pursuant
to this Section 9 were determined by a pro rata allocation (even if the
Managers were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in paragraph (e) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities and expenses referred
to in paragraph (a), (c) or (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating any claim or defending
any such action, suit or proceeding. Notwithstanding the provisions of this
Section 9, no Manager shall be required to contribute any amount in excess of
the amount by which the total price of the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such Manager
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 Managers' obligations to contribute pursuant to this
Section 9 are several in proportion to the respective numbers of Shares set
forth opposite their names in Schedule II hereto (or such numbers of Shares
increased as set forth in Section 13 hereof) and not joint.
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(g) No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(h) Any losses, claims, damages, liabilities or
expenses for which an indemnified party is entitled to indemnification or
contribution under this Section 9 shall be paid by the indemnifying party to
the indemnified party as such losses, claims, damages, liabilities or expenses
are incurred. The indemnity and contribution agreements contained in this
Section 9 and the representations and warranties of the Company and the Selling
Stockholders set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of
any Managers or any person controlling any Manager, the Company, its directors
or officers or the Selling Stockholders or any person controlling the Company,
(ii) acceptance of any Shares and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to any Manager or any person
controlling any Manager, or to the Company, its directors or officers, or any
person controlling the Company shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
9.
10. Conditions of Managers' Obligations. The several
obligations of the Managers to purchase the Shares hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or a post-effective
amendment thereto or any Abbreviated Registration Statement to be declared
effective before the offering of the Shares may commence, the Registration
Statement or such post-effective amendment or any Abbreviated Registration
Statement shall have become effective not later than 5:30 P.M., New York City
time, on the date hereof, or at such later date and time as shall be consented
to in writing by you, and all filings, if any, required by Rules 424 and 430A
under the Act shall have been timely made; no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been instituted or, to the knowledge of
the Company or any Manager, threatened by the Commission, and any request of
the Commission for additional information (to be included in the Registration
Statement or the Prospectuses or otherwise) shall have been complied with to
your satisfaction.
(b) Subsequent to the effective date of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting the condition (financial or
other), business, properties, net worth, or results of operations of the
Company or the Subsidiaries not contemplated by the Prospectuses, which in your
opinion, as Lead Managers for the several Managers, would materially, adversely
affect the market for the Shares, or (ii) any event or development relating to
or involving the Company or any executive officer or director of the Company or
any Selling Stockholder which makes any statement made in the Prospectuses
untrue in any material respect or which, in the opinion of the Company and its
counsel or the Managers and their counsel, requires the making of any addition
to or change in the Prospectuses in order to make the statements therein, in
the light of the circumstances in which they were made, not misleading, if
amending or supplementing the Prospectuses to reflect such event or development
would, in your opinion, as Lead Managers for the several Managers, materially
adversely affect the market for the Shares.
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(c) You shall have received on the Closing Date, an
opinion of and a letter from Shaw, Pittman, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, counsel to the
Company, dated the Closing Date and addressed to you, as Lead Managers for the
several Managers, to the effect that:
(i) The Company is a corporation duly
incorporated, validly existing and in good standing
under the laws of the State of Delaware with full
corporate power and authority to own, lease and operate
its properties and to conduct its business as described
in the Registration Statement and the Prospectuses (and
any amendment or supplement thereto), and is duly
qualified or licensed to conduct its business as a
foreign corporation and is in good standing in the
State of Maryland;
(ii) JP Foodservice Distributors, Inc.
("JP") is a corporation validly existing and in good
standing under the laws of the State of Delaware with
full corporate power and authority to own, lease, and
operate its properties and to conduct its business as
described in the Registration Statement and the
Prospectuses (and any amendment or supplement
thereto); and all of the outstanding shares of
capital stock of JP are owned by the Company
directly, or indirectly through one of the other
Subsidiaries, free and clear of any perfected
security interest, or, to the best knowledge of such
counsel after reasonable inquiry, any other security
interest, lien, adverse claim, equity or other
encumbrance. Based upon such counsel's review of the
capital stock records of Sky Bros., Inc. and Illinois
Fruit & Produce Corp., all of the outstanding shares
of capital stock of such corporation are owned
indirectly through subsidiaries of the Company;
(iii) All of the outstanding shares of
capital stock of the Company have been duly
authorized and validly issued and are fully paid and
non-assessable. The authorized and outstanding
capital stock of the Company is as set forth under
the caption "Capitalization" in the Prospectuses;
(iv) The Shares have been duly
authorized, validly issued, fully paid and are
nonassessable and free of any preemptive rights under
the General Corporation Law of the State of Delaware.
To such counsel's knowledge, except as described in
the Prospectuses, (i) there are no outstanding
options, warrants or other rights calling for the
issuance of, or any commitment, plan or arrangement
to issue, any shares of capital stock of the Company
or any security convertible into or exchangeable or
exercisable for capital stock of the Company and (ii)
no holder of any security of the Company or any other
person has the right, contractual or otherwise, to
cause the Company to sell or otherwise issue to them,
or to permit them to underwrite the sale of, the
Shares or the right to have any shares of Common
Stock or other securities of the Company included in
the Registration Statement or the right, as a result
of the filing of the Registration Statement, to
require registration under the Act of any shares of
Common Stock or other securities of the Company;
(v) The form of certificates for the
Shares conforms to the requirements of the Delaware
General Corporation Law;
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(vi) The Registration Statement and all
post-effective amendments, if any, or any Abbreviated
Registration Statement have become effective under
the Act and, to such counsel's knowledge, no stop
order suspending the effectiveness of the
Registration Statement has been issued and no
proceedings for that purpose are pending before or
contemplated by the Commission. Any required filing
of the Prospectuses pursuant to Rule 424(b) has been
made in accordance with Rule 424(b);
(vii) The Company has the corporate power
and authority to enter into this Agreement and this
Agreement has been duly authorized, executed and
delivered by the Company;
(viii) The offer, sale and delivery of the
Shares pursuant to this Agreement (i) do not conflict
with and do not and will not constitute a breach of,
or a default under, the certificate of incorporation
or bylaws of the Company or JP or any agreement,
indenture, lease or other instrument to which the
Company or JP is a party or by which either of them
or any of their respective properties is filed as an
exhibit to the Registration Statement or to any
Incorporated Document, or which is otherwise known to
such counsel, (ii) do not result and will not result
in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the
Company or JP and (iii) do not result and will not
result in any violation by the Company of (A) any
existing law, regulation, ruling (assuming compliance
with all applicable state securities and Blue Sky
laws), in each case that in the experience of such
counsel are normally applicable to transactions
provided for in this Agreement, or (B) any judgment,
injunction, order or decree known to such counsel,
applicable to the Company, JP or any of their
respective properties;
(ix) No consent, approval, authorization
or other order of, or registration or filing with,
any court, regulatory body, administrative agency or
other governmental body, agency, or official is
required on the part of the Company (except as have
been obtained under the Act and the Exchange Act or
such as may be required under state securities or
Blue Sky laws governing the purchase and distribution
of the Shares) for the valid sale of the Shares to
the Managers as contemplated by this Agreement;
(x) The Registration Statement and the
Prospectuses and any supplements or amendments
thereto (except for the financial statements and the
notes thereto and the schedules and other financial
and statistical data included therein, as to which
such counsel need not express any opinion) comply as
to form in all material respects with the
requirements of the Act; and each of the Incorporated
Documents (except for the financial statements and
the notes thereto and the schedules and other
financial and statistical data included therein, as
to which counsel need not express any opinion)
complies as to form in all material respects with the
Exchange Act and the rules and regulations of the
Commission thereunder;
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(xi) To such counsel's knowledge, (A)
there are no legal or governmental proceedings
pending or threatened against the Company or any of
the Subsidiaries, or to which the Company, any of the
Subsidiaries or any of their respective properties,
is subject which are required to be described in the
Registration Statement or Prospectuses (or any
amendment or supplement thereto) that are not
described as required by the Act and (B) there are no
agreements, contracts, indentures, leases or other
instruments, that are required to be described in the
Registration Statement or the Prospectuses (or any
amendment or supplement thereto) or to be filed as an
exhibit to the Registration Statement or any
Incorporated Document that are not described or filed
as required by the Act or the Exchange Act, as the
case may be;
(xii) The statements in the Registration
Statement and Prospectuses, insofar as they
constitute statements of law or legal conclusions,
are accurate in all material respects;
(xiii) Although counsel has not undertaken,
except as otherwise indicated in their opinion, to
determine independently, and does not assume any
responsibility for, the accuracy or completeness of
the statements in the Registration Statement, such
counsel has participated in the preparation of the
Registration Statement and the Prospectuses,
including review and discussion of the contents
thereof (including review and discussion of the
contents of all Incorporated Documents), and nothing
has come to the attention of such counsel that has
caused them to believe that the Registration
Statement (including the Incorporated Documents) at
the time the Registration Statement became effective
contained an untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Prospectuses or
any amendment or supplement thereto, as of its
respective date, and as of the Closing Date or the
Option Closing Date, as the case may be, contained
any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading (it being
understood that such counsel need express no opinion
with respect to the financial statements and the
notes thereto and the schedules and other financial
and statistical data included in the Registration
Statement or the Prospectuses or any Incorporated
Document).
In rendering their opinion as aforesaid, such counsel may rely
upon an opinion or opinions, each dated the Closing Date, of other counsel
retained by them or the Company as to laws of any jurisdiction other than the
United States or the State of Maryland, provided that (1) each such local
counsel is acceptable to the Lead Managers, (2) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such opinion is
delivered to the Lead Managers and is, in form and substance, satisfactory to
them and their counsel, and (3) counsel shall state in their opinion that they
believe that they and the Managers are justified in relying thereon.
(d) (i) You shall have received on the Closing Date
an opinion from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to the ▇▇▇▇ ▇▇▇
Selling Stockholders, and from corporate counsel to the
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▇▇▇▇ ▇▇▇ Selling Stockholders, dated the Closing Date and addressed to you, as
Lead Managers for the several Managers, with respect to the ▇▇▇▇ ▇▇▇ Selling
Stockholders, to the effect that:
(A) Each ▇▇▇▇ ▇▇▇ Selling Stockholder has the requisite
corporate power and authority to enter into this Agreement and
to sell and deliver the Shares to be sold by such ▇▇▇▇ ▇▇▇
Selling Stockholder under this Agreement;
(B) This Agreement has been duly authorized, executed and
delivered by or on behalf of each ▇▇▇▇ ▇▇▇ Selling Stockholder
and constitutes the valid and binding obligation of such ▇▇▇▇
▇▇▇ Selling Stockholder;
(C) The execution and delivery of this Agreement and the sale
of the Shares by each ▇▇▇▇ ▇▇▇ Selling Stockholder to the
Managers, and compliance by such ▇▇▇▇ ▇▇▇ Selling Stockholder
with the terms of this Agreement, including the delivery to
the Managers of certificates evidencing such Shares and the
execution and delivery to the Managers of a stock power in
blank, have been duly authorized by all necessary action on
the part of such ▇▇▇▇ ▇▇▇ Selling Stockholder and do not, and
will not, result in a violation of the certificate of
incorporation and bylaws or comparable constitutional
documents of such ▇▇▇▇ ▇▇▇ Selling Stockholder, and do not,
and will not, conflict with, or result in a breach of any of
the terms and provisions of, or constitute a default under (I)
any statute, rule or regulation relating to such ▇▇▇▇ ▇▇▇
Selling Stockholder or its legal or regulatory status in each
case, that in the experience of such counsel are normally
applicable to transactions of the type provided for in
this Agreement, (II) any material judgment, order, rule,
injunction or regulation of any court or governmental agency
or body, domestic or foreign, having jurisdiction over such
▇▇▇▇ ▇▇▇ Selling Stockholder or any of its respective
properties or (III) any material contract, agreement or other
instrument to which such ▇▇▇▇ ▇▇▇ Selling Stockholder is a
party or by which it or any of its properties are subject;
(D) Upon consummation of the sale of the Shares pursuant
to this Agreement, assuming the Managers purchased the Shares
for value, in good faith and without notice of adverse claim,
the Managers will have acquired all rights of the ▇▇▇▇ ▇▇▇
Selling Stockholder in the Shares free and clear of any
security interest, mortgage, lien, pledge, encumbrance, claim
or equity, and the owner of the Shares, if other than such
▇▇▇▇ ▇▇▇ Selling Stockholder, is precluded from asserting
against the Managers the ineffectiveness of any unauthorized
endorsement.
(ii) You shall have received on the
Closing Date an opinion from ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., counsel to the ▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇ Charitable Remainder Annuity Trust (the "Trust"), dated the Closing
Date and addressed to you, as Lead Managers for the several Managers, with
respect to the Trust, to the effect that:
(A) The Trust has the requisite corporate power and authority
to enter into this Agreement and to sell and deliver the
Shares to be sold by the Trust under this Agreement;
(B) This Agreement has been duly authorized, executed and
delivered by or on behalf of the Trust and constitutes the
valid and binding obligation of the Trust;
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(C) The execution and delivery of this Agreement and the sale
of the Shares by the Trust to the Managers, and compliance by
the Trust with the terms of this Agreement, including the
delivery to the Managers of certificates evidencing such
Shares and the execution and delivery to the Managers of a
stock power in blank, have been duly authorized by all
necessary action on the part of the Trust and do not, and will
not, result in a violation of the certificate of incorporation
and bylaws or comparable constitutional documents of the
Trust, if any, and do not, and will not, conflict with, or
result in a breach of any of the terms and provisions of, or
constitute a default under (I) any statute, rule or regulation
relating to such party or its legal or regulatory status in
each case, that in the experience of such counsel are normally
applicable to transactions of the type provided for in this
Agreement, (II) any material judgment, order, rule, injunction
or regulation of any court or governmental agency or body,
domestic or foreign, having jurisdiction over the Trust or any
of its respective properties or (III) any material contract,
agreement or other instrument to which the Trust is a party or
by which it or any of its properties are subject;
(D) Upon consummation of the sale of the Shares pursuant
to this Agreement, assuming the Managers purchased the Shares
for value, in good faith and without notice of adverse claim,
the Managers will have acquired all rights of the Trust in the
Shares free and clear of any security interest, mortgage,
lien, pledge, encumbrance, claim or equity, and the owner of
the Shares, if other than the Trust, is precluded from
asserting against the Managers the ineffectiveness of any
unauthorized endorsement.
(iii) You shall have received on the
Closing Date an opinion from Carlsmith Ball ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Case & Ichiki,
counsel to the Selling Stockholders denoted by an asterisk in Schedule I hereto
(the "Individual Selling Stockholders"), dated the Closing Date and addressed
to you, as Lead Managers for the several Managers, with respect to each of the
Individual Selling Stockholders, to the effect that:
(A) To the best of our knowledge, the execution and delivery
of this Agreement and the sale of the Shares by the Individual
Selling Stockholder to the Managers, and compliance by the
Individual Selling Stockholder with the terms of this
Agreement, including the delivery to the Managers of
certificates evidencing such Shares and the execution and
delivery to the Managers of a stock power in blank, will not,
conflict with, or result in a breach of any of the terms and
provisions of, or constitute a default under (I) any statute,
rule or regulation relating to the Individual Selling
Stockholder or its legal or regulatory status, in each case
that in the experience of such counsel are normally applicable
to transactions of the type provided for in this Agreement,
(II) any material judgment, order, rule, injunction or
regulation of any court or governmental agency or body,
domestic or foreign, having jurisdiction over the Individual
Selling Stockholder or any of its respective properties or
(III) any material contract, agreement or other instrument to
which the Individual Selling Stockholder is a party or by
which it or any of its properties are subject;
(B) Upon consummation of the sale of the Shares pursuant to
this Agreement, assuming the Managers purchased the Shares for
value, in good faith and without notice of adverse claim, the
Managers will have acquired all rights of the Individual
Selling Stockholder in the Shares free and clear of any
security interest, mortgage, lien, pledge, encumbrance, claim
or equity, and the owner of the Shares, if other than such
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Individual Selling Stockholder, is precluded from asserting
against the Managers the ineffectiveness of any unauthorized
endorsement.
(e) You shall have received on the Closing Date an
opinion of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel for the Managers, dated the
Closing Date and addressed to you, as Lead Managers for the several Managers,
with respect to such matters as you may request.
(f) You shall have received letters addressed to
you, as Representatives of the several Underwriters, and dated the date hereof
and the Closing Date from Price Waterhouse LLP, independent certified public
accountants, substantially in the forms heretofore approved by you and of a
form satisfactory to Price Waterhouse LLP.
(g) (i) No stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings for
that purpose shall have been taken or, to the knowledge of the Company, shall
be contemplated by the Commission at or prior to the Closing Date; (ii) there
shall not have been any change in the capital stock of the Company nor any
material increase in the short-term or long-term debt of the Company (other
than in the ordinary course of business) from that set forth or contemplated in
the Registration Statement or the Prospectuses (or any amendment or supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectuses
(or any amendment or supplement thereto), except as may otherwise be stated in
the Registration Statement and the Prospectuses (or any amendment or supplement
thereto), any material adverse change in the condition (financial or other),
business, prospects, properties, net worth or results of operations of the
Company and the Subsidiaries taken as a whole; (iv) the Company and the
Subsidiaries shall not have any liabilities or obligations, direct or
contingent (whether or not in the ordinary course of business), that are
material to the Company and the Subsidiaries taken as a whole, other than those
reflected in the Registration Statement or the Prospectuses (or any amendment
or supplement thereto); and (v) all the representations and warranties of the
Company contained in this Agreement shall be true and correct on and as of the
date hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate, dated the Closing
Date and signed by the chief executive officer and the chief financial officer
of the Company (or such other officers as are acceptable to you), to the
effect set forth in this Section 10(g) and in Section 10(h) hereof.
(h) The Company shall not have failed at or prior to
the Closing Date to have performed or complied with any of its agreements
contained in this Agreement or in the U.S. Underwriting Agreement and required
to be performed or complied with by it hereunder at or prior to the Closing
Date.
(i) All the several representations and warranties
of the Selling Stockholders contained in this Agreement or in the U.S.
Underwriting Agreement shall be true and correct on and as of the date hereof
and on and as of the Closing Date as if made on and as of the Closing Date, and
you shall have received a certificate, dated the Closing Date and signed by or
on behalf of each of the Selling Stockholders to the effect set forth in this
Section 10(i) and in Section 10(j) hereof.
(j) The Selling Stockholders shall not have failed
at or prior to the Closing Date to have performed or complied with any of their
agreements contained in this Agreement or in the U.S. Underwriting Agreement
and required to be performed or complied with by them at or prior to the
Closing Date.
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(k) The closing under the U.S. Underwriting
Agreement shall have occurred on the Closing Date concurrently with the Closing
hereunder.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the
Company or any Attorney-in-Fact or any Selling Stockholder and delivered to
you, as Lead Managers for the several Managers, or to counsel for the Managers,
shall be deemed a representation and warranty by the Company, the Selling
Stockholders or the particular Selling Stockholder, as the case may be, to each
Manager as to the statements made therein.
11. Expenses. The Company agrees to pay the following costs
and expenses and all other costs and expenses incident to the performance by
them of their obligations hereunder: (i) the preparation, printing or
reproduction, and filing with the Commission of the registration statement
(including financial statements and exhibits thereto), each of the Prepricing
Prospectuses, the Prospectuses, and each amendment or supplement to any of
them; (ii) the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies of the
registration statement, each International Prepricing Prospectus, the
International Prospectus, the Incorporated Documents, and all amendments or
supplements to any of them, as may be reasonably requested by the Selling
Stockholders or the Managers for use in connection with the offering and sale
of the Shares; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Shares; (iv) the printing (or reproduction)
and delivery of this Agreement, the U.S. Underwriting Agreement, the
Supplemental Agreement Among U.S. Underwriters, the Agreement Among Managers,
the Agreement Between U.S. Underwriters and Managers, the International Selling
Agreement, the Manager's Questionnaire, the preliminary and supplemental Blue
Sky Memoranda and all other agreements, memoranda, correspondence or documents
printed (or reproduced) and delivered in connection with the offering of the
Underwritten Shares; (v) the registration or qualification of the Shares for
offer and sale under the securities laws of the several jurisdictions as
provided in Section 5(g) hereof (including reasonable fees, expenses and
disbursements of counsel for the U.S. Underwriters and Managers relating
thereto); (vi) the filing fees and the fees and expenses of counsel for the
Managers in connection with any filings required to be made with the National
Association of Securities Dealers, Inc.; (vii) the transportation and other
expenses incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Shares; (viii) the fees and
disbursements of the Company's accountants and legal counsel; and (ix) the
reasonable fees and expenses of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, counsel
to the ▇▇▇▇ ▇▇▇ Selling Stockholders.
Each Selling Stockholder shall pay and bear all expenses
incurred incident to the delivery of the Shares sold by such Selling
Stockholder, including any stock transfer taxes payable upon the sale of such
shares to the purchaser thereof.
12. Limitation of Liability. The total liabilities of
each Selling Stockholder under this Agreement, including without limitation
any liabilities for breach of representation or warranty or with respect to any
obligation of indemnity, shall not in any event exceed in aggregate amount the
proceeds of the Shares sold hereunder by such Selling Stockholder, provided
that this Section 12 shall not limit the liability
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of the Selling Stockholders to pay expenses required to be paid by the Selling
Stockholders pursuant to Section 11 hereof.
13. Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the registration statement or a post-effective amendment thereto to be
declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the registration statement or such
post-effective amendment has been released by the Commission. Until such time
as this Agreement shall have become effective, it may be terminated by the
Company or the Selling Stockholders, by notifying you, or by you, as Lead
Managers for the several Managers, by notifying the Company and the Selling
Stockholders.
If any one or more of the Managers shall fail or refuse to
purchase Shares which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares which such defaulting Manager
or Managers are obligated but fail or refuse to purchase is not more than
one-tenth of the aggregate number of Shares which the Managers are obligated to
purchase on the Closing Date, each non-defaulting Manager shall be obligated,
severally, in the proportion which the number of Shares set forth opposite its
name in Schedule II hereto bears to the aggregate number of Shares set forth
opposite the names of all non-defaulting Managers or in such other proportion
as you may specify in accordance with Section 20 of the Master Agreement Among
Underwriters of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., to purchase the Shares which such defaulting
Manager or Managers are obligated, but fail or refuse, to purchase. If any one
or more of the Managers shall fail or refuse to purchase Shares which it or
they are obligated to purchase on the Closing Date and the aggregate number of
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares which the Managers are obligated to purchase on the
Closing Date and arrangements satisfactory to you, the Company and the Selling
Stockholders for the purchase of such Shares by one or more non-defaulting
Managers or other party or parties approved by you, the Company and the Selling
Stockholders are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Manager, the
Company or the Selling Stockholders. In any such case which does not result in
termination of this Agreement, either you, the Company or the Selling
Stockholders shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Manager from liability in respect of any such default of
any such Manager under this Agreement. The term "Manager" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule II hereto who, with your approval and the approval of the Company and
the Selling Stockholders, purchases Shares which a defaulting Manager is
obligated, but fails or refuses, to purchase.
Any notice under this Section 13 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
14. Termination of Agreement. This Agreement shall be
subject to termination in your absolute discretion, without liability on the
part of any Manager to the Company or any Selling Stockholder, by notice to the
Company and the ▇▇▇▇ ▇▇▇ Selling Stockholders, if, prior to the Closing Date,
(i) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
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activities in New York or Maryland shall have been declared by either federal
or state authorities, or (iii) there shall have occurred any outbreak or
escalation of hostilities or other international or domestic calamity, crisis
or change in political, financial or economic conditions, the effect of which
on the financial markets of the United States is such as to make it, in your
judgment, impracticable or inadvisable to commence or continue the offering of
the Shares at the offering price to the public set forth on the cover page of
the International Prospectus or to enforce contracts for the resale of the
Shares by the Managers. Notice of such termination may be given by telegram,
telecopy or telephone and shall be subsequently confirmed by letter.
15. Information Furnished by the Managers and the Selling
Stockholders. The statements set forth in the last paragraph on the cover
page, the legends on the inside cover page, and the statements in the first,
second, fourth and fourteenth paragraphs under the caption "Underwriting" in
any International Prepricing Prospectus and in the International Prospectus,
constitute the only information furnished by or on behalf of the Managers
through you as such information is referred to in Sections 7(b) and 9 hereof.
The information set forth in the Prospectuses under the
caption "Selling Stockholders" which specifically relates to the Selling
Stockholders constitutes the only information furnished by or on behalf of the
Selling Stockholders as such information is referred to in Sections 7(b) and 9
hereof.
16. Miscellaneous. Except as otherwise provided in Sections
5, 13 and 14 hereof, notice given pursuant to any provision of this Agreement
shall be in writing and shall be delivered (i) if to the Company, at the office
of the Company at JP Foodservice, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇ III, Senior Vice President and Chief Financial
Officer; or (ii) if to the Individual Selling Stockholders, at Carlsmith Ball
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Case & Ichiki, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.; or (iii) if to the
Trust, at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: E.
▇▇▇▇ ▇▇▇▇▇▇▇; or (iv) if to the ▇▇▇▇ ▇▇▇ Selling Stockholders, at Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.; or (v) if to you, as Representatives of the
several Underwriters, care of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Investment Banking Division.
Notices to ▇▇▇▇ ▇▇▇ Corporation shall be deemed duly given if provided as
required pursuant to this Section.
By the signature of its executive officer below, ▇▇▇▇ ▇▇▇
Corporation confirms the representations, warranties and agreements of its
wholly owned subsidiary, ▇▇▇▇ ▇▇▇ Foodservice Holdings, Inc., contained herein.
This Agreement has been and is made solely for the benefit of
the several Managers, the Company, the Selling Stockholders, the directors,
officers, agents, employees and advisors of the Company and the Selling
Stockholders, and the other controlling persons referred to in Section 9
hereof, and their respective successors and assigns, to the extent provided
herein, and no other person shall acquire or have any right under or by virtue
of this Agreement. Neither the term "successor" nor the term "successors and
assigns" as used in this Agreement shall include a purchaser from any Manager
of any of the Shares in his status as such purchaser.
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17. Applicable Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts,
this Agreement shall not become effective unless at least one counterpart
hereof shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Selling Stockholders and the several Managers.
Very truly yours,
JP Foodservice, Inc.
By
-----------------------------
Name:
Title:
Each of the Selling Stockholders
named in Schedule I hereto
By
-----------------------------
Attorney-in-Fact
By
-----------------------------
Attorney-in-Fact
▇▇▇▇ ▇▇▇ Corporation
By
------------------------------
Name:
Title:
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Confirmed as of the date first above mentioned on behalf of
themselves and the other several Underwriters named in Schedule
II hereto.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL
THE ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇ COMPANY, INC.
As Lead Managers for the Several Managers
By ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By ______________________________
Name:
Title:
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SCHEDULE I
JP FOODSERVICE, INC.
Number of
Selling Stockholders Shares
-------------------- ---------
▇▇▇▇ ▇▇▇ Foodservice Holdings, Inc.
▇▇▇▇ ▇▇▇ Foundation
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇*
▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Charitable
Remainder Annuity Trust
E. ▇▇▇▇ ▇▇▇▇▇▇▇**
---------
Total . . . . . . . . . . . . . . . . 1,140,000
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SCHEDULE II
JP FOODSERVICE, INC.
Number of
Manager Shares
------- ---------
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International
The ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇ Company, Inc.
Total . . . . . . . . . . . . . . . . 1,140,000
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SCHEDULE III
JP FOODSERVICE, INC.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, III
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