Exhibit 1
DRAFT DATED February 23, 1998
3,800,000 Shares
TOKHEIM CORPORATION
Common Stock
UNDERWRITING AGREEMENT
----------------------
____________, 1998
PAINEWEBBER INCORPORATED
BT ALEX. XXXXX INCORPORATED
XXXXXXXX & CO., INC.
As Representatives of the
several Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Tokheim Corporation, an Indiana corporation (the "Company"), proposes to
sell an aggregate of 3,800,000 shares (the "Firm Shares") of the Company's
Common Stock, no par value (the "Common Stock"), to you and to the other
underwriters named in Schedule I (collectively, the "Underwriters"), for whom
you are acting as representatives (the "Representatives"). The Company has also
agreed to grant to you and the other Underwriters an option (the "Option") to
purchase up to an additional 570,000 shares of Common Stock (the "Option
Shares") on the terms and for the purposes set forth in Section 1(b). The Firm
Shares and the Option Shares are hereinafter collectively referred to as the
"Shares."
The initial public offering price per share for the Shares and the purchase
price per share for the Shares to be paid by the several Underwriters shall be
agreed upon by the Company and the Representatives, acting on behalf of the
several Underwriters, and such agreement shall be set forth in a separate
written instrument substantially in the form of Exhibit A hereto (the "Price
Determination Agreement"). The Price Determination Agreement may take the form
of an exchange of any standard form of written telecommunication among the
Company and the Representatives and shall specify such applicable information as
is indicated in Exhibit A hereto. The offering of the Shares will be governed
by this Agreement, as supplemented by the Price Determination Agreement. From
and after the date of the execution and delivery of the Price Determination
Agreement, this Agreement shall be deemed to incorporate, and, unless the
context otherwise indicates, all references
contained herein to "this Agreement" and to the phrase "herein" shall be deemed
to include the Price Determination Agreement.
The Company confirms as follows its agreements with the Representatives and
the several other Underwriters.
1. Agreement to Sell and Purchase.
(a) On the basis of the representations, warranties and agreements of
the Company herein contained and subject to all the terms and conditions of this
Agreement, the Company agrees to sell to each Underwriter named below, and each
Underwriter, severally and not jointly, agrees to purchase from the Company at
the purchase price per share for the Firm Shares to be agreed upon by the
Representatives and the Company in accordance with Section 1(c) or 1(d) hereof
and set forth in the Price Determination Agreement, the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I, plus such
additional number of Firm Shares which such Underwriter may become obligated to
purchase pursuant to Section 8 hereof. Schedule I may be attached to the Price
Determination Agreement.
(b) Subject to all the terms and conditions of this Agreement, the
Company grants the Option to the several Underwriters to purchase, severally and
not jointly, up to 570,000 Option Shares from the Company at the same price per
share as the Underwriters shall pay for the Firm Shares. The Option may be
exercised only to cover over-allotments in the sale of the Firm Shares by the
Underwriters and may be exercised in whole or in part at any time (but not more
than once) on or before the 30th day after the date of this Agreement (or, if
the Company has elected to rely on Rule 430A, on or before the 30th day after
the date of the Price Determination Agreement), upon written or telegraphic
notice (the "Option Shares Notice") by the Representatives to the Company no
later than 12:00 noon, New York City time, at least two and no more than five
business days before the date specified for closing in the Option Shares Notice
(the "Option Closing Date") setting forth the aggregate number of Option Shares
to be purchased and the time and date for such purchase. On the Option Closing
Date, the Company will issue and sell to the Underwriters the number of Option
Shares set forth in the Option Shares Notice, and each Underwriter will purchase
such percentage of the Option Shares as is equal to the percentage of Firm
Shares that such Underwriter is purchasing, as adjusted by the Representatives
in such manner as they deem advisable to avoid fractional shares.
(c) The initial public offering price per share for the Firm Shares
and the purchase price per share for the Firm Shares to be paid by the several
Underwriters shall be agreed upon and set forth in the Price Determination
Agreement, if the Company has elected to rely on Rule 430A. In the event such
price has not been agreed upon and the Price Determination Agreement has not
been executed by the close of business on the fourteenth business day following
the date on which the Registration Statement (as hereinafter defined) becomes
effective, this Agreement shall terminate forthwith, without liability of any
party to any other party except that Section 6 shall remain in effect.
(d) If the Company has elected not to rely on Rule 430A, the initial
public offering price per share for the Firm Shares and the purchase price per
share for the Firm Shares to be paid by the several Underwriters shall be agreed
upon and set forth in the Price Determination
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Agreement, which shall be dated the date hereof, and an amendment to the
Registration Statement containing such per share price information shall be
filed before the Registration Statement becomes effective.
2. Delivery and Payment. Delivery of the Firm Shares shall be made
to the Representatives for the accounts of the Underwriters at the office of
PaineWebber Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
against payment by you to the account of the Company of the purchase price by
wire transfer of Federal Funds or similar same day funds to an account
designated in writing by the Company to PaineWebber Incorporated at least one
business day prior to the Closing Date (as hereinafter defined). Such payment
shall be made at 10:00 a.m., New York City time, on the third business day (or
fourth business day, if the Price Determination Agreement is executed after 4:30
p.m.) after the date on which the first bona fide offering of the Shares to the
public is made by the Underwriters or at such time on such other date, not later
than ten business days after such date, as may be agreed upon by the Company and
the Representatives (such date is hereinafter referred to as the "Closing
Date"). It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Firm Shares and Option Shares, if any,
which it has agreed to purchase.
To the extent the Option is exercised, delivery of the Option Shares
against payment by the Underwriters (in the manner specified above) will take
place at the offices specified above at the time and date (which may be the
Closing Date) specified in the Option Shares Notice.
Certificates evidencing the Shares shall be in definitive form and
shall be registered in such names and in such denominations as the
Representatives shall request at least two business days prior to the Closing
Date or the Option Closing Date, as the case may be, by written notice to the
Company. For the purpose of expediting the checking and packaging of
certificates for the Shares, the Company agrees to make such certificates
available for inspection at least 24 hours prior to the Closing Date or the
Option Closing Date, as the case may be.
The cost of original issue tax stamps, if any, in connection with the
issuance and delivery of the Firm Shares and Option Shares by the Company to the
respective Underwriters shall be borne by the Company. The Company will pay and
save each Underwriter and any subsequent holder of the Shares harmless from any
and all liabilities with respect to or resulting from any failure or delay in
paying Federal and state stamp and other transfer taxes, if any, which may be
payable or determined to be payable in connection with the original issuance or
sale to such Underwriter of the Firm Shares and Option Shares.
3. Representations and Warranties of the Company. The Company
represents, warrants and covenants to each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 and a
registration statement (Registration No. _____) on Form S-3 relating to the
Shares, including a preliminary prospectus and such amendments to such
registration statement as may have been required to the date of this Agreement,
has been prepared by the Company under the provisions of the Securities Act of
1933, as amended (the "Act"), and the rules and regulations (collectively
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referred to as the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder, and has been filed with the
Commission. The term "preliminary prospectus" as used herein means a
preliminary prospectus as contemplated by Rule 430 or Rule 430A ("Rule 430A") of
the Rules and Regulations included at any time as part of the registration
statement. Copies of such registration statement and amendments and of each
related preliminary prospectus have been delivered to the Representatives. The
term "Registration Statement" means the registration statement as amended at the
time it becomes or became effective (the "Effective Date"), including financial
statements and all exhibits and any information deemed to be included by Rule
430A or Rule 434 of the Rules and Regulations. If the Company files a
registration statement to register a portion of the Shares and relies on Rule
462(b) of the Rules and Regulations for such registration statement to become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to the "Registration Statement" shall be deemed
to include the Rule 462 Registration Statement, as amended from time to time.
The term "Prospectus" means the prospectus as first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations or, if no such filing is
required, the form of final prospectus included in the Registration Statement at
the Effective Date. Any reference herein to the Registration Statement, any
preliminary 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
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the Effective Date or the date of such preliminary
prospectus or the Prospectus, as the case may be. Any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act after the
Effective Date, or the date of any preliminary prospectus or the Prospectus, as
the case may be, and deemed to be incorporated therein by reference.
(b) On the Effective Date, the date the Prospectus is first filed with
the Commission pursuant to Rule 424(b) (if required), the Closing Date and, if
later, the Option Closing Date and when any post-effective amendment to the
Registration Statement becomes effective or any amendment or supplement to the
Prospectus is filed with the Commission, the Registration Statement and the
Prospectus (as amended or as supplemented if the Company shall have filed with
the Commission any amendment or supplement thereto), did or will comply in all
material respects with all applicable provisions of the Act, the Exchange Act,
the rules and regulations thereunder (the "Exchange Act Rules and Regulations")
and the Rules and Regulations. On the Effective Date and when any post-
effective amendment to the Registration Statement becomes effective, no part of
the Registration Statement or any such amendment did or will contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. At the Effective Date, the date the Prospectus or any amendment or
supplement to the Prospectus is filed with the Commission and at the Closing
Date and, if later, the Option Closing Date, the Prospectus did not or will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing representations and
warranties in this Section 3(b) do not apply to any statements or omissions made
in reliance on and in conformity with information relating to any Underwriter
furnished in writing to the Company by the Representatives specifically for
inclusion in the Registration Statement or Prospectus or any amendment or
supplement thereto. For all purposes of this Agreement, the amounts of the
selling concession and reallowance set forth in the Prospectus constitute the
only information relating to any
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Underwriter furnished in writing to the Company by the Representatives
specifically for inclusion in the Registration Statement, the preliminary
prospectus or the Prospectus. The Company has not distributed any offering
material in connection with the offering or sale of the Shares other than the
Registration Statement, the preliminary prospectus, the Prospectus or any other
materials, if any, permitted by the Act.
(c) The documents which are incorporated by reference in the
preliminary prospectus and the Prospectus, when they become effective or were
filed with the Commission, as the case may be, complied in all material respects
with the requirements of the Act or the Exchange Act, as applicable, the
Exchange Act Rules and Regulations and the Rules and Regulations; and any
documents so filed and incorporated by reference subsequent to the Effective
Date shall, when they are filed with the Commission, conform in all material
respects with the requirements of the Act and the Exchange Act, as applicable,
the Exchange Act Rules and Regulations and the Rules and Regulations.
(d) The only significant subsidiaries (as defined in Rule 1-02(w) of
Regulation S-X under the Act) of the Company as of the Closing Date are the
subsidiaries listed on Exhibit B attached hereto (the "Subsidiaries"). Each of
the Company and its Subsidiaries is, and at the Closing Date will be, a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation. Each of the Company and its Subsidiaries
has, and at the Closing Date will have, full power and authority to conduct all
the activities conducted by it, to own or lease all the assets owned or leased
by it and to conduct its business as described in the Registration Statement and
the Prospectus, except where such failure would not be expected to have a
material adverse effect on the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the Company and
the Subsidiaries taken as a whole (each such event a "Material Adverse Effect").
Each of the Company and its Subsidiaries is, and at the Closing Date will be,
duly licensed or qualified to do business and in good standing as a foreign
corporation in all jurisdictions in which the nature of the activities conducted
by it or the character of the assets owned or leased by it makes such licensing
or qualification necessary, except where the failure to be so qualified would
not reasonably be expected to have a Material Adverse Effect. All of the
outstanding shares of capital stock of the Subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable and are
owned by the Company free and clear of all liens, encumbrances and claims
whatsoever (except as described in the Registration Statement) or as imposed by
the credit agreement between the Company, NBD First Chicago Corporation and
certain other banks, dated as of September 6, 1996 (the "Credit Agreement"), the
Act or by the securities or "Blue Sky" laws of certain jurisdictions. Except
for the stock of the Subsidiaries and any other interest listed on Schedule __
or as disclosed in the Registration Statement, the Company does not own, and at
the Closing Date will not own, directly or indirectly, any shares of stock or
any other equity or long-term debt securities of any corporation or have any
equity interest in any firm, partnership, joint venture, association or other
entity. Complete and correct copies of the certificate of incorporation and of
the by-laws of each of the Company and its Subsidiaries and all amendments
thereto have been delivered (or, in the case of the Subsidiaries, made
available) to the Representatives, and, except as disclosed to the
Representatives, no changes therein will be made subsequent to the date hereof
and prior to the Closing Date or, if later, the Option Closing Date.
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(e) The outstanding shares of Common Stock have been, and the Shares
to be issued and sold by the Company upon such issuance will be, duly
authorized, validly issued, fully paid and nonassessable and are not and will
not be subject to any preemptive or similar right. The description of the
Common Stock and the Preferred Share Purchase Rights in the Registration
Statement and the Prospectus is, and at the Closing Date will be, complete and
accurate in all material respects. Except for the Preferred Share Purchase
Rights and as otherwise set forth in the Prospectus [and shares of Common Stock
subject to issuance] pursuant to employee stock options or other benefit plans,
the Company does not have outstanding, and at the Closing Date will not have
outstanding, any options to purchase, or any rights or warrants to subscribe
for, or any securities or obligations convertible into, or any contracts or
commitments to issue or sell, any shares of Common Stock, any shares of capital
stock of any Subsidiary or any such warrants, convertible securities or
obligations.
(f) The financial statements and schedules of the Company included or
incorporated by reference in the Registration Statement or the Prospectus
present fairly, in all material respects, the consolidated financial condition
of the Company as of the respective dates thereof and the consolidated results
of operations and cash flows of the Company for the respective periods covered
thereby, all in conformity with generally accepted accounting principles applied
on a consistent basis throughout the entire period involved, except as otherwise
disclosed in the Prospectus. The audited combined financial statements of the
petroleum dispenser business ("Sofitam") of Sofitam S.A. incorporated by
reference in the Registration Statement or the Prospectus present fairly, in all
material respects, the combined financial position of Sofitam as of the dates
thereof and the combined results of operations and cash flows of Sofitam for the
periods covered thereby, all in accordance with French generally accepted
accounting principles applied on a consistent basis throughout the entire period
involved, except as otherwise disclosed therein. The audited financial
statements of Management Solutions, Inc. ("MSI") included in the Registration
Statement or Prospectus present fairly, in all material respects, the financial
position of MSI as of the dates thereof and the results of operations and cash
flows of MSI for the respective periods covered thereby, all in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the entire period covered thereby, except as otherwise disclosed
therein. The pro forma financial statements and other pro forma financial
information included in the Registration Statement or the Prospectus (i) have
been prepared in accordance, in all material respects, with the Commission's
rules and guidelines with respect to pro forma financial statements and (ii)
have been properly computed on the bases described therein. The assumptions used
in the preparation of the pro forma financial statements and other pro forma
financial information included in the Registration Statement or the Prospectus
are reasonable in the judgment of the Company, and the adjustments used therein
are appropriate, in all material respects, to give effect to the transactions or
circumstances referred to therein. No other financial statements or schedules
of the Company are required by the Act, the Exchange Act or the Rules and
Regulations to be included in the Registration Statement or the Prospectus.
Coopers & Xxxxxxx, L.L.P. ("C&L") and Xxxxxxxx Xxxxxx, are independent
accountants as required by the Act and the Rules and Regulations.
(g) The Company maintains a system of internal accountings control
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain
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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.
(h) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the Closing
Date, except as set forth in or contemplated by this Agreement, the Registration
Statement and the Prospectus, (i) there has not been and will not have been any
material change in the capitalization of the Company, or any material adverse
change in the business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries, taken
as a whole (a "Material Adverse Change"), (ii) neither the Company nor any of
its Subsidiaries has incurred or will incur any material liabilities or
obligations, direct or contingent, nor has it entered into or will it enter into
any material transactions other than pursuant to this Agreement and the
transactions referred to herein, in either case not in the ordinary course of
business and which are material to the Company and the Subsidiaries taken as a
whole, and (iii) the Company has not and will not have paid or declared any
dividends or other distributions of any kind on any class of its capital stock.
(i) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended.
(j) Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company or any of
its Subsidiaries or any of their respective officers in their capacity as such,
before or by any Federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, wherein
an unfavorable ruling, decision or finding could reasonably be expected to
result in a Material Adverse Effect or which seeks to enjoin or otherwise
prevent the consummation of the transactions contemplated hereby.
(k) Each of the Company and its Subsidiaries has, and at the Closing
Date will have, (i) all governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to carry on its business as
contemplated in the Prospectus, and (ii) complied in all respects with all laws,
regulations and orders applicable to it or its business; except, in the case of
(i) or (ii) where a failure could not be expected to result, singly or in the
aggregate, in a Material Adverse Effect and is not, and at the Closing Date will
not be, in violation or default, under any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, bond, debenture, note agreement, lease,
contract or other agreement or instrument (collectively, a "contract or other
agreement") to which it is a party or by which its property is bound or
affected, except for such violations or defaults as could not be expected to
result, singly or in the aggregate, in a Material Adverse Effect. To the
knowledge of the Company and each of its Subsidiaries, no other party under any
contract or other agreement to which it is a party is in default in any respect
thereunder, except for such default as could not reasonably be expected to
result, singly or in the aggregate, in a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries is, nor at the Closing Date will any of them
be, in violation of any provision of its articles of incorporation or by-laws.
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(l) No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Shares by the Company, in connection with the execution, delivery and
performance of this Agreement by the Company or in connection with the taking by
the Company of any action contemplated hereby, except such as have been obtained
under the Act or the Rules and Regulations and such as may be required under
state securities or Blue Sky laws, the rules of the New York Stock Exchange or
the by-laws and rules of the National Association of Securities Dealers, Inc.
(the "NASD") in connection with the purchase and distribution by the
Underwriters of the Shares.
(m) The Company has full corporate power and authority to enter into
this Agreement. This Agreement has been duly authorized, executed and delivered
by the Company and (assuming due authorization, execution and delivery by
PaineWebber Incorporated) constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with the terms hereof
except that such enforcement may be subject to (i) the effect of bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights and remedies
of creditors and (ii) the effect of general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law) and the
discretion of the court before which any proceeding therefor may be brought.
The performance of this Agreement and the consummation of the transactions
contemplated hereby and the application of the net proceeds from the offering
and sale of the Shares in the manner set forth in the Prospectus under "Use of
Proceeds" will not violate, result in the creation or imposition of any lien,
charge or encumbrance upon any of the assets of the Company or any of its
Subsidiaries pursuant to the terms or provisions of, or result in a breach or
violation of any of the terms or provisions of, or constitute a conflict with or
a default under, or give any other party a right to terminate any of its
obligations under, or result in the acceleration of any obligation under, (i)
the articles of incorporation or by-laws of the Company or any of its
Subsidiaries, (ii) any contract or other agreement to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries or any of its properties is bound or affected, or (iii) (assuming
compliance with all applicable state securities and "Blue Sky" laws) any
judgment, ruling, decree, order, statute, rule or regulation of any court or
other governmental agency or body applicable to the business or properties of
the Company or any of its Subsidiaries, except in the case of clause (ii) and
(iii), breaches, defaults or violations which could not be reasonably expected
to result, either singly or in the aggregate, in a Material Adverse Effect.
(n) Each of the Company and its Subsidiaries has (i) good and valid
title to all properties and assets described in the Prospectus as owned by it,
free and clear of all liens, charges, encumbrances or restrictions, and (ii)
valid and enforceable leases for the properties described in the Prospectus as
leased by it, except as described in the Prospectus, or as set forth in the
Credit Agreement, or where the failure to have such title or lease or the
existence of such lien, charge, encumbrance or restriction would not, singly or
in the aggregate, be reasonably likely to have a Material Adverse Effect.
(o) There is no document or contract required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed as required. All such
contracts to which the Company or any Subsidiary is a party
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have been duly authorized, executed and delivered by the Company or such
Subsidiary, constitute valid and binding agreements of the Company or such
Subsidiary and are enforceable against the Company or such Subsidiary in
accordance with the terms thereof, except where such failure would not, singly
or in the aggregate, be reasonably likely to have a Material Adverse Effect and
except that such enforcement may be subject to (i) the effect of bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights and remedies
of creditors and (ii) the effect of general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law) and the
discretion of the court before which any proceeding therefor may be brought.
(p) Neither the Company nor any of its directors, officers or
controlling persons has taken, directly or indirectly, any action intended, or
which might reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares.
(q) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the
Registration Statement.
(r) The Shares are duly authorized for listing, subject to official
notice of issuance, on the New York Stock Exchange.
(s) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent; and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its principal suppliers, manufacturers or contractors that
could reasonably be expected to result in a Material Adverse Effect.
(t) Except as disclosed in the Prospectus, the Company and its
Subsidiaries own, or are licensed or otherwise have the right to use, or can
acquire on reasonable terms, the material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, services marks and trade names (collectively, "patent
and proprietary rights") presently employed by them or which are necessary in
connection with the conduct of the business now operated by them. Except as
disclosed in the Prospectus, neither the Company nor any of its Subsidiaries has
received any written notice or otherwise has actual knowledge of any
infringement of or conflict with asserted rights of others or any other claims
with respect to any patent or proprietary rights, or of any basis for rendering
any patent and proprietary rights invalid or inadequate to protect the interest
of the Company or any of its Subsidiaries which infringement, conflict,
invalidity or inadequacy would be reasonable expected to have a Material Adverse
Effect.
(u) Neither the Company nor any of its Subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any Subsidiary has
made any payment of funds of the Company or any Subsidiary or received or
retained any funds in violation of any law, rule or regulation or of a character
required to be disclosed in the Prospectus.
(v) The Company and its Subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human
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health and safety, the environment or imposing liability or standards of conduct
concerning any Hazardous Material (as hereinafter defined) ("Environmental
Laws"), (ii) have received all material permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of any such
material permit, license or approval, except as disclosed in the Prospectus or
where such noncompliance with Environmental Laws, failure to receive such
permits, licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals could not reasonably be
expected to result, either singly or in the aggregate, in a Material Adverse
Effect. The term "Hazardous Material" means (A) any "hazardous substance" as
defined by the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, (B) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (C) any petroleum or petroleum
product, (D) any polychlorinated biphenyl and (E) any pollutant or contaminant
or hazardous, dangerous, or toxic chemical, material, waste or substance
regulated under or within the meaning of any other Environmental Law.
(w) The Company maintains insurance with respect to its properties and
business of the types and in amounts generally deemed adequate for its business
and consistent with insurance coverage maintained by similar companies and
businesses, all of which insurance is in full force and effect.
(x) The Company has filed all material federal, state and foreign
income and franchise tax returns required to be filed through the date hereof
and has paid all taxes shown as due thereon, other than taxes which are being
contested in good faith and for which adequate reserves have been established in
accordance with generally accepted accounting principles; and the Company has no
knowledge of any tax deficiency which has been or might be asserted or
threatened against the Company that would have a Material Adverse Effect. There
are no tax returns of the Company or any of its Subsidiaries that are currently
being audited by state, local or federal taxing authorities or agencies (and
with respect to which the Company or any Subsidiary has received notice), where
the findings of such audit, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect.
(y) Except as disclosed in the Prospectus, 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 with respect to which the Company could incur
any liability under ERISA (collectively, the "Benefit Plans"), no event has
occurred and, to the knowledge of the Company, there exists no condition or set
of circumstances, in connection with which the Company could be subject to any
liability under the terms of such Benefit Plan, applicable law (including,
without limitation, ERISA and the Internal Revenue Code of 1986, as amended) or
any applicable agreement that could reasonably be expected to result in a
Material Adverse Effect.
4. Agreements ofthe Company. The Company agrees with the several
Underwriters as follows:
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(a) The Company will not, either prior to the Effective Date or
thereafter during such period as the Prospectus is required by law to be
delivered in connection with sales of the Shares by an Underwriter or dealer,
file any amendment or supplement to the Registration Statement or the
Prospectus, unless a copy thereof shall first have been submitted to the
Representatives within a reasonable period of time prior to the filing thereof
and the Representatives shall not have reasonably objected thereto in good
faith.
(b) The Company will use all reasonable efforts to cause the
Registration Statement to become effective, and will notify the Representatives
promptly, and will confirm such notification in writing, (1) when the
Registration Statement has become effective and when any post-effective
amendment thereto becomes effective, (2) of any request by the Commission for
amendments or supplements to the Registration Statement or the Prospectus or for
additional information, (3) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose or the threat thereof, (4) of the happening of
any event during the period mentioned in the second sentence of Section 4(e)
that in the judgment of the Company makes any statement of a material fact made
in the Registration Statement or the Prospectus untrue or that requires the
making of any changes in the Registration Statement or the Prospectus in order
to make the statements of a material fact therein, in light of the circumstances
in which they are made, not misleading and (5) of receipt by the Company or any
representative or attorney of the Company of any other communication from the
Commission relating to the Company, the Registration Statement, any preliminary
prospectus or the Prospectus. If at any time the Commission shall issue any
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 moment. The Company will use all reasonable efforts to comply
with the provisions of and make all requisite filings with the Commission
pursuant to Rule 430A and to notify the Representatives promptly of all such
filings.
(c) The Company will furnish to the Representatives, without charge,
two signed copies of the Registration Statement and of any post-effective
amendment thereto, including financial statements and schedules, and all
exhibits thereto (including any document filed under the Exchange Act and deemed
to be incorporated by reference into the Prospectus) and will furnish to the
Representatives, without charge, for transmittal to each of the other
Underwriters, a copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules but without
exhibits.
(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the
Company will deliver to each of the Underwriters, without charge, as many copies
of the Prospectus or any amendment or supplement thereto as the Representatives
may reasonably request. The Company consents to the use of the Prospectus or
any amendment or supplement thereto by the several Underwriters and by all
dealers to whom the Shares may be sold, both in connection with the offering or
sale of the Shares and for any period of time thereafter during which the
Prospectus is required by law to be delivered in connection therewith. If
during such period of time any event shall occur which in the judgment of the
Company or counsel to the Underwriters should be set forth
-11-
in the Prospectus in order to make any statement of a material fact therein, in
the light of the circumstances under which it was made, not misleading, or if it
is necessary to supplement or amend the Prospectus to comply with law, the
Company will forthwith prepare and duly file with the Commission an appropriate
supplement or amendment thereto, and will deliver to each of the Underwriters,
without charge, such number of copies thereof as the Representatives may
reasonably request. The Company shall not file any document under the Exchange
Act before the termination of the offering of the Shares by the Underwriters
which is not approved by the Representatives after reasonable notice thereof,
which approval shall not be unreasonably withheld, conditioned or delayed, if
such document would be deemed to be incorporated by reference into the
Prospectus.
(f) Prior to any public offering of the Shares by the Underwriters,
the Company will cooperate with the Representatives and counsel to the
Underwriters in connection with the registration or qualification of the Shares
for offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Representatives may request; 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 general service of
process in any jurisdiction where it is not now so subject or to subject itself
to taxation in respect of doing business in any jurisdiction in which it is not
otherwise subject.
(g) During the period of three years commencing on the Effective Date,
the Company will furnish to the Representatives and each other Underwriter who
may so request copies of such financial statements and other periodic and
special reports as the Company may from time to time distribute generally to the
holders of any class of its capital stock, and will furnish to the
Representatives and each other Underwriter who may so request a copy of each
annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its
securities as soon as may be practicable but in no event later than the last day
of the fifteenth full calendar month following the end of the calendar quarter
in which the Effective Date falls, an earnings statement (which need not be
audited but shall be in reasonable detail) for a period of at least 12 months
ended commencing after the Effective Date, and satisfying the provisions of
Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated pursuant to Section 7 hereof, the
Company will pay, or reimburse if paid by the Representatives, all costs and
expenses incident to the performance of the obligations of the Company under
this Agreement, including but not limited to costs and expenses of or relating
to (1) the preparation, printing and filing of the Registration Statement and
exhibits to it, each preliminary prospectus, the Prospectus and any amendment or
supplement to the Registration Statement or the Prospectus, (2) the preparation
and delivery of certificates representing the Shares, (3) the word processing,
printing and reproduction of this Agreement, the Agreement Among Underwriters,
any Dealer Agreements and any Underwriters' Questionnaire, (4) furnishing
(including costs of shipping, mailing and courier) such copies of the
Registration Statement, the Prospectus and any preliminary prospectus, and all
amendments and supplements thereto, as may be requested for use in connection
with the offering and sale of the Shares by the Underwriters or by dealers to
whom Shares may be sold, (5) the listing of the Shares on the New York Stock
-12-
Exchange, (6) any filings required to be made by the Underwriters with the NASD,
and the fees, disbursements and other charges of counsel for the Underwriters in
connection therewith, (7) the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of such jurisdictions
designated pursuant to Section 4(f), including the fees, disbursements and other
charges of counsel to the Underwriters in connection therewith, and the
preparation and printing of preliminary, supplemental and final Blue Sky
memoranda, (8) counsel to the Company, (9) the transfer agent for the Shares and
(10) C & L.
(j) If the sale of the Shares provided for herein is not consummated
because any condition to the obligations of the Underwriters is not satisfied or
because this Agreement shall be terminated by the Company pursuant to Section 7
hereof or if the Company shall be unable to perform its obligations hereunder
(other than because of a default by any Underwriter), the Company will reimburse
the several Underwriters for all out-of-pocket expenses (including the
reasonable and documented fees, disbursements and other charges of counsel to
the Underwriters) reasonably incurred by them in connection with the proposed
purchase and sale of the Shares.
(k) The Company will not at any time, directly or indirectly, take any
action intended, or which might reasonably be expected, to cause or result in,
or which will constitute, stabilization of the price of the shares of Common
Stock to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering and sale
of the Shares to be sold by the Company in the manner set forth in the
Prospectus under "Use of Proceeds."
(m) The Company will not, and will cause each of its executive
officers and directors to enter into agreements with the Representatives in the
form set forth in Exhibit C to the effect that each of them will not, for a
period of 120 days after the commencement of the public offering of the Shares,
without the prior written consent of PaineWebber Incorporated, sell, contract to
sell or otherwise dispose of any shares of Common Stock or rights to acquire
such shares (other than pursuant to employee stock option plans or in connection
with other employee incentive compensation arrangements).
5. Conditions of the Obligations of the Underwriters. In addition to
the execution and delivery of the Price Determination Agreement, the obligations
of each Underwriter hereunder are subject to the following conditions:
(a) Notification that the Registration Statement has become effective
shall be received by the Representatives not later than 5:00 p.m., New York City
time, on the date of this Agreement or at such later date and time as shall be
consented to in writing by the Representatives and all filings required by Rule
424 of the Rules and Regulations and Rule 430A shall have been made.
(b) At the closing, (i) no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) any request for
additional information on the part of the staff
-13-
of the Commission shall have been complied with to the satisfaction of the staff
of the Commission and to the reasonable satisfaction of Counsel to the
Underwriters (iii) after the date hereof no amendment or supplement to the
Registration Statement or the Prospectus shall have been filed unless a copy
thereof was first submitted to the Representatives and the Representatives did
not object thereto in good faith, and the Representatives shall have received
certificates, dated the Closing Date and the Option Closing Date and signed by
the Chief Executive Officer or the Chairman of the Board of Directors of the
Company and the Chief Financial Officer of the Company (who may, as to
proceedings threatened, rely upon the best of their information and belief), to
the effect of clause (i).
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there shall not have been a
Material Adverse Change, whether or not arising from transactions in the
ordinary course of business, in each case other than as set forth in or
contemplated by the Registration Statement and the Prospectus, and (ii) neither
the Company nor any of its Subsidiaries shall have sustained any material loss
or interference with its business or properties from fire, explosion, flood or
other casualty, whether or not covered by insurance, or from any labor dispute
or any court or legislative or other governmental action, order or decree, which
is not set forth in the Registration Statement and the Prospectus, if in the
judgment of the Representatives any such development makes it impracticable or
inadvisable to consummate the sale and delivery of the Shares by the
Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall have been no litigation
or other proceeding instituted against the Company or any of its Subsidiaries or
any of their respective officers or directors in their capacities as such,
before or by any Federal, state or local court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, in which
litigation or proceeding an unfavorable ruling, decision or finding would be
reasonably likely to have a Material Adverse Affect.
(e) Each of the representations and warranties of the Company
contained herein shall be true and correct in all material respects at the
Closing Date and, with respect to the Option Shares, at the Option Closing Date,
as if made at the Closing Date and, with respect to the Option Shares, at the
Option Closing Date, and all covenants and agreements herein contained to be
performed on the part of the Company and all conditions herein contained to be
fulfilled or complied with by the Company at or prior to the Closing Date and,
with respect to the Option Shares, at or prior to the Option Closing Date, shall
have been duly performed, fulfilled or complied with in all material respects.
(f) The Representatives shall have received an opinion, dated the
Closing Date and, with respect to the Option Shares, the Option Closing Date,
and satisfactory in form and substance to counsel for the Underwriters, from (i)
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) ("Skadden"), counsel to the
Company, to the effect set forth in Exhibit D, and (ii) Xxxxxx Xxxxxx, General
Counsel to the Company, to the effect set forth in Exhibit E. In rendering such
opinion, Skadden shall have received, and may rely on, such certificates and
other documents as they may reasonably request to pass upon such matters
(including the opinion of Xxxxxx Xxxxxx as to Indiana law).
-14-
(g) The Representatives shall have received an opinion, dated the
Closing Date and the Option Closing Date, from Xxxxxx & Xxxxxx L.L.P., counsel
to the Underwriters, with respect to the Registration Statement, the Prospectus
and this Agreement, which opinion shall be satisfactory in all respects to the
Representatives.
(h) On the date of the Prospectus, C&L shall have furnished to the
Representatives a letter, dated the date of its delivery, addressed to the
Representatives and in form and substance satisfactory to the Representatives,
confirming that they are independent accountants with respect to the Company as
required by the Act and the Rules and Regulations and with respect to the
financial and other statistical and numerical information contained in the
Registration Statement or incorporated by reference therein. At the Closing
Date and, as to the Option Shares, the Option Closing Date, C&L shall have
furnished to the Representatives a letter, dated the date of its delivery, which
shall confirm, on the basis of a review in accordance with the procedures set
forth in their letter dated the date of the Prospectus, that nothing has come to
their attention during the period from the date of their letter dated the date
of the Prospectus to a date (specified in the letter) not more than five days
prior to the Closing Date and the Option Closing Date which would require any
material change in their letter dated the date of the Prospectus, if it were
required to be dated and delivered at the Closing Date and the Option Closing
Date.
(i) At the Closing Date and, as to the Option Shares, the Option
Closing Date, there shall be furnished to the Representatives a certificate,
dated the date of its delivery, signed by each of the Chief Executive Officer or
President and the Chief Financial Officer of the Company, in form and substance
satisfactory to the Representatives, to the effect that:
(i) Each of the representations and warranties of the Company
contained in this Agreement were, when originally made, and are, at the
time such certificate is delivered, true and correct in all material
respects;
(ii) Each of the covenants required herein to be performed by the
Company on or prior to the delivery of such certificate has been duly,
timely and fully performed and each condition herein required to be
complied with by the Company on or prior to the date of such certificate
has been duly, timely and fully complied with; and
(iii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (A) there has not
been a Material Adverse Change other than as set forth in or contemplated
by the Registration Statement and the Prospectus, and (B) neither the
Company nor any of its Subsidiaries has sustained any material loss or
interference with its business or properties from fire, explosion, flood or
other casualty, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action, order or
decree, which is not set forth in the Registration Statement and the
Prospectus, except any such loss or interference which would not reasonably
be expected to have a Material Adverse Effect.
(j) On or prior to the Closing Date, the Representatives shall have
received the executed agreements referred to in Section 4(m).
-15-
(k) The Shares shall be qualified for sale in such states as the
Representatives may reasonably request, subject to Section 4(f).
(l) Prior to the Closing Date, the Shares shall have been duly
authorized for listing by the New York Stock Exchange, subject only to official
notice of issuance.
(m) The NASD shall have approved the underwriting terms and
arrangements, and such approval shall not have been withdrawn or limited.
(n) On the Closing Date and the Option Closing Date, the Company shall
have furnished to the Representatives such documents, in addition to those
specifically mentioned herein, as the Representatives may have reasonably
requested as to enable them to determine the accuracy and completeness of any
statement in the Registration Statement or the Prospectus or any documents filed
under the Exchange Act and deemed to be incorporated by reference into the
Prospectus, the accuracy at the Closing Date and the Option Closing Date of the
representations and warranties of the Company herein, the performance by the
Company of its obligations hereunder, or the fulfillment of the conditions
concurrent and precedent to the obligations hereunder of the Representatives.
6. Indemnification.
(a) The Company will indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person,
if any, who controls each Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act from and against any and all losses,
claims, liabilities, expenses and damages (including, but not limited to, any
and all investigative, legal and other expenses reasonably incurred in
connection with, and any and all amounts paid in settlement of, any action, suit
or proceeding between any of the indemnified parties and any indemnifying
parties or between any indemnified party and any third party, or otherwise, or
any claim asserted), as and when incurred, to which any Underwriter, or any such
person, may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, liabilities, expenses or damages arise out of or are based on
(i) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Registration Statement or the
Prospectus or any amendment or supplement to the Registration Statement or the
Prospectus or in any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus, or in any application or other
document executed by or on behalf of the Company or based on written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify the Shares under the securities laws thereof or filed with the
Commission, (ii) the omission or alleged omission to state in such document a
material fact required to be stated in it or necessary to make the statements in
it not misleading or (iii) any act or failure to act or any alleged act or
failure to act by any Underwriter in connection with, or relating in any manner
to, the Shares or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, liability, expense or damage arising
out of or based upon matters covered by clause (i) or (ii) above (provided that
the Company shall not be liable under this clause (iii) to the extent it is
finally judicially determined by a court of competent jurisdiction that such
loss, claim, liability, expense or damage resulted directly from any such acts
or failures to act undertaken or omitted to be taken by such underwriter through
its gross negligence or willful misconduct); provided that the Company
-16-
will not be liable to the extent that such loss, claim, liability, expense or
damage (A) arises from the sale of the Shares in the public offering to any
person by an Underwriter and is based on an untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Company by
the Representatives on behalf of any Underwriter expressly for inclusion in the
Registration Statement, any preliminary prospectus or the Prospectus or (B)
results solely from an untrue statement of a material fact contained in, or the
omission of a material fact from, such preliminary prospectus, which untrue
statement or omission was completely corrected in the Prospectus (as then
amended or supplemented) if the Company shall sustain the burden of proving that
the Underwriters sold Shares to the person alleging such loss, claim, liability,
expense or damage without sending or giving, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as then amended or
supplemented) if the Company had previously furnished copies thereof to the
Underwriters within a reasonable amount of time prior to such sale or such
confirmation, and the Underwriters failed to deliver the corrected Prospectus,
if required by law to have so delivered it and if delivered would have been a
complete defense against the person asserting such loss, claim, liability,
expense or damage. This indemnity agreement will be in addition to any
liability that the Company might otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company,
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, each director of the Company and
each officer of the Company who signs the Registration Statement to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
insofar as losses, claims, liabilities, expenses or damages arise out of or are
based on any untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company by the Representatives on behalf
of such Underwriter expressly for use in the Registration Statement, the
Preliminary Prospectus or the Prospectus. This indemnity will be in addition to
any liability that each Underwriter might otherwise have; provided, however,
that in no case shall any Underwriter be liable or responsible for any amount in
excess of the underwriting discounts and commissions received by such
Underwriter.
(c) Any party that proposes to assert the right to be indemnified
under this Section 6 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 6, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 6 unless, and only to the extent that,
such omission results in the forfeiture or material compromise of substantive
rights or defenses by the indemnifying party. If any such action is brought
against any indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in and, to
the extent that it elects by delivering written notice to the indemnified party
promptly after receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel satisfactory to the
indemnified party (which consent shall not be unreasonably withheld), and after
notice from the indemnifying party to the indemnified party of its election to
assume the defense, the indemnifying party will not be liable to the
-17-
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (3) a conflict
or potential conflict exists (based on advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which case
the indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party has not
in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not be liable for any settlement of any action or claim
effected without its written consent (which consent will not be unreasonably
withheld). No indemnifying party shall, without the prior written consent of
each indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding relating to
the matters contemplated by this Section 6 (whether or not any indemnified party
is a party thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising or
that may arise out of such claim, action or proceeding. Notwithstanding any
other provision of this Section 6(c), if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel, such indemnifying party agrees that it shall be liable
for any settlement effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Underwriters, the
Company and the Underwriters will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons other than the
Underwriters, such as persons who control the Company within the meaning of the
Act, officers of the Company who signed the Registration Statement and directors
of the Company, who also may be liable for contribution) to which the Company
and any one or more of the Underwriters may be subject in such proportion as
shall be appropriate to reflect the relative benefits received by
-18-
the Company on the one hand and the Underwriters on the other. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (net of discounts and commissions but before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. If, but only if, the allocation provided
by the foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Underwriters, on the
other, with respect to the statements or omissions which resulted in such loss,
claim, liability, expense or damage, or action in respect thereof, as well as
any other relevant equitable considerations with respect to such offering. Such
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Representatives on behalf of the Underwriters, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this Section
6(d) were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, liability, expense or damage, or action in respect thereof,
referred to above in this Section 6(d) shall be deemed to include, for purpose
of this Section 6(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6(d), no Underwriter
shall be required to contribute any amount in excess of the underwriting
discounts and commissions received by it and no person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 6(d) are several in proportion to their respective
underwriting obligations and not joint. For purposes of this Section 6(d), any
person who controls a party to this Agreement within the meaning of the Act will
have the same rights to contribution as that party, and each director of the
Company and each officer of the Company who signed the Registration Statement
will have the same rights to contribution as the Company, subject in each case
to the provisions hereof. Any party entitled to contribution, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim for contribution may be made under this Section 6(d), will notify
any such party or parties from whom contribution may be sought, but the omission
so to notify will not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have under this Section 6(d).
Except for a settlement entered into pursuant to the last sentence of Section 6
(c) hereof, no party will be liable for contribution with respect to any action
or claim settled without its written consent (which consent will not be
unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Company contained in
this Agreement shall remain operative and in full force and effect regardless of
(i) any investigation made by or on behalf of the Underwriters, (ii) acceptance
of the Shares and payment therefore or (iii) any termination of this Agreement.
-19-
7. Termination. This Agreement may be terminated at any time on or
prior to the Closing Date (or, with respect to the Option Shares, on or prior to
the Option Closing Date), by notice to the Company from the Representatives,
without liability on the part of any Underwriter to the Company, if, prior to
delivery and payment for the Shares (or the Option Shares, as the case may be),
in the sole judgment of the Representatives, (i) there has been, since the
respective dates as of which information is given in the Registration Statement,
any Material Adverse Change, (ii) trading in any of the equity securities of the
Company shall have been suspended by the Commission, the NASD, or an exchange
that lists the Shares, (iii) trading in securities generally on the New York
Stock Exchange or the Nasdaq Stock Market shall have been suspended or limited,
or minimum or maximum prices shall have been generally established on such
exchange or over-the-counter market, or additional material governmental
restrictions, not in force on the date of this Agreement, shall have been
imposed upon trading in securities generally by such exchange or by order of the
Commission or the NASD or any court or other governmental authority, (iv) a
general banking moratorium shall have been declared by either Federal or New
York State authorities or (v) any material adverse change in the financial or
securities markets in the United States or in political, financial or economic
conditions in the United States or any outbreak or material escalation of
hostilities or declaration by the United States of a national emergency or war
or other calamity or crisis shall have occurred the effect of any of which is
such as to make it, in the sole judgment of the Representatives, impracticable
or inadvisable to market the Shares on the terms and in the manner contemplated
by the Prospectus.
8. Substitution of Underwriters. If any one or more of the
Underwriters shall fail or refuse to purchase any of the Firm Shares which it or
they have agreed to purchase hereunder, and the aggregate number of Firm Shares
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate number of Firm Shares,
the other Underwriters shall be obligated, severally, to purchase the Firm
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase, in the proportions which the number of Firm Shares which
they have respectively agreed to purchase pursuant to Section 1 bears to the
aggregate number of Firm Shares which all such non-defaulting Underwriters have
so agreed to purchase, or in such other proportions as the Representatives may
specify; provided that in no event shall the maximum number of Firm Shares which
any Underwriter has become obligated to purchase pursuant to Section 1 be
increased pursuant to this Section 8 by more than one-ninth of the number of
Firm Shares agreed to be purchased by such Underwriter without the prior written
consent of such Underwriter. If any Underwriter or Underwriters shall fail or
refuse to purchase any Firm Shares and the aggregate number of Firm Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase exceeds one-tenth of the aggregate number of the Firm Shares and
arrangements satisfactory to the Representatives and the Company for the
purchase of such Firm Shares are not made within 48 hours after such default,
this Agreement will terminate without liability on the part of any non-
defaulting Underwriter or the Company for the purchase or sale of any Shares
under this Agreement. In any such case either the Representatives or the
Company 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 in the Prospectus or in any other documents or
arrangements may be effected. Any action taken pursuant to this Section 8 shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
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9. Miscellaneous. Notice given pursuant to any of the provisions of
this Agreement shall be in writing and, unless otherwise specified, shall be
mailed or delivered (a) if to the Company, at the office of the Company, Tokheim
Corporation, 00000 Xxxxxxxxx Xxxxx, X.X. Xxx 000, Xxxx Xxxxx, Xxxxxxx 00000,
Attention: Chief Financial Officer, with a copy to Skadden, Arps, Slate,
Xxxxxxx & Xxxx (Illinois), 000 X. Xxxxxx Xxxxx, Xxx. 0000 Xxxxxxx, Xxxxxxxx,
00000, Attention Xxxxxxx X. Xxxxxx, or (b) if to the Underwriters, to the
Representatives at the offices of PaineWebber Incorporated, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance Department.
Any such notice shall be effective only upon receipt. Any notice under Section
7 or 8 may be made by telex or telephone, but if so made shall be subsequently
confirmed in writing.
This Agreement has been and is made solely for the benefit of the
several Underwriters and the Company and of the controlling persons, directors
and officers referred to in Section 6, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" as used in this Agreement
shall not include a purchaser, as such purchaser, of Shares from any of the
several Underwriters.
All representations, warranties and agreements of the Company
contained herein or in certificates or other instruments delivered pursuant
hereto, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any of its controlling
persons and shall survive delivery of and payment for the Shares hereunder.
Any action required or permitted to be taken by the Representatives
under this Agreement may be taken by them jointly or by PaineWebber
Incorporated.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
The Company and the Underwriters each hereby irrevocably waives any
right it may have to a trial by jury in respect of any claim based upon or
arising out of this Agreement or the transactions contemplated hereby.
This Agreement may not be amended or otherwise modified or any
provision hereof waived except by an instrument in writing signed by the
Representatives and the Company.
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Underwriters.
-21-
Very truly yours,
TOKHEIM CORPORATION
By:_____________________________
Name:
Title:
Confirmed as of the date first
above mentioned:
PAINEWEBBER INCORPORATED
BT ALEX. XXXXX INCORPORATED
XXXXXXXX & CO., INC.
Acting on behalf of themselves
and as the Representatives of the
other several Underwriters
named in Schedule I hereof.
By: PAINEWEBBER INCORPORATED
By: ____________________________
Name:
Title:
-22-
SCHEDULE I
UNDERWRITERS
Number of
Name of Firm Shares
Underwriters to be Purchased
------------ ---------------
PaineWebber Incorporated
BT Alex. Xxxxx Incorporated
Xxxxxxxx & Co., Inc.
---------------
Total 3,800,000
===============
EXHIBIT A
TOKHEIM CORPORATION
________________
PRICE DETERMINATION AGREEMENT
-----------------------------
[____________, 1998]
PAINEWEBBER INCORPORATED
BT ALEX. XXXXX INCORPORATED
XXXXXXXX & CO., INC.
As Representatives of the several Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the Underwriting Agreement, dated [____________,
1998] (the "Underwriting Agreement"), among Tokheim Corporation, an Indiana
corporation (the "Company") and the several Underwriters named in Schedule I
thereto (the "Underwriters"), for whom PaineWebber Incorporated, BT Alex. Xxxxx
Incorporated, and Xxxxxxxx & Co., Inc., are acting as Representatives (the
"Representatives"). The Underwriting Agreement provides for the purchase by the
Underwriters from the Company, subject to the terms and conditions set forth
therein, of an aggregate of 3,800,000 shares (the "Firm Shares") of the
Company's common stock, no par value. This Agreement is the Price Determination
Agreement referred to in the Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the undersigned
agree with the Representatives as follows:
The initial public offering price per share for the Firm Shares shall
be $_______.
The purchase price per share for the Firm Shares to be paid by the
several Underwriters shall be $_______, representing an amount equal to the
initial public offering price set forth above, less $______ per share.
-1-
The Company represents and warrants to each of the Underwriters that
the representations and warranties of the Company set forth in Section 3 of the
Underwriting Agreement are accurate in all material respects as though expressly
made at and as of the date hereof.
As contemplated by the Underwriting Agreement, attached as Schedule I
is a completed list of the several Underwriters, which shall be a part of this
Agreement and the Underwriting Agreement.
This Agreement shall be governed by the law of the State of New York
without regard to the conflict of laws principles of such State.
If the foregoing is in accordance with your understanding of the
agreement among the Underwriters and the Company, please sign and return to the
Company a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Underwriting Agreement shall be a binding
agreement among the Underwriters and the Company in accordance with its terms
and the terms of the Underwriting Agreement.
-2-
Very truly yours,
TOKHEIM CORPORATION
By:_________________________
Name:
Title:
Confirmed as of the date
first above mentioned:
PAINEWEBBER INCORPORATED
BT ALEX. XXXXX INCORPORATED
XXXXXXXX & CO., INC.
Acting on behalf of themselves
and as the Representatives of the
other several Underwriters
named in Schedule I of the
Underwriting Agreement.
By: PAINEWEBBER INCORPORATED
By: ____________________________
Name:
Title:
-3-
EXHIBIT B
LIST OF SUBSIDIARIES
EXHIBIT C
[February ___, 1998]
PAINEWEBBER INCORPORATED
BT ALEX. XXXXX INCORPORATED
XXXXXXXX & CO., INC.
As Representatives of the
several Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
In consideration of the agreement of the several Underwriters, for
which PaineWebber Incorporated, Xxxxxxxx & Co., Inc., and BT Alex. Xxxxx
Incorporated (the "Representatives") intend to act as Representatives to
underwrite a proposed public offering (the "Offering") of 3,800,000 shares of
Common Stock, no par value (the "Common Stock") of Tokheim Corporation, an
Indiana corporation, as contemplated by a registration statement with respect to
such shares filed with the Securities and Exchange Commission on Form S-3
(Registration No. _________), the undersigned hereby agrees that the undersigned
will not, for a period of 120 days after the commencement of the public offering
of such shares, without the prior written consent of PaineWebber Incorporated,
offer to sell, sell, contract to sell, grant any option to sell, or otherwise
dispose of, or require the Company to file with the Securities and Exchange
Commission a registration statement under the Securities Act of 1933 to register
any shares of Common Stock or securities convertible into or exchangeable for
Common Stock or warrants or other rights to acquire shares of Common Stock of
which the undersigned is now, or may in the future become, the beneficial owner
(within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934).
Very truly yours,
________________________
Print Name:________________________
EXHIBIT D
Form of Opinion of
Counsel to the Company
----------------------
Each of the Subsidiaries listed below is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has full corporate power and authority to conduct all the
activities conducted by it, to own or lease all the assets owned or leased by it
and to conduct its business as described in the Registration Statement and the
Prospectus: [list non-Indiana significant subs].
The Shares, when issued, delivered and paid for by the Underwriters in
accordance with the terms of the Agreement, will be, duly authorized, validly
issued, fully paid and nonassessable and will not be subject to any preemptive
or similar right under any instrument, document, contract or other agreement
referred to in the Registration Statement or any instrument, document, contract
or agreement filed as an exhibit to, or incorporated as an exhibit by reference
in, the Registration Statement. Except as described in the Registration
Statement or the Prospectus, to our knowledge, there is no commitment or
arrangement to issue, and there are no outstanding options, warrants or other
rights calling for the issuance of, any share of capital stock of the Company or
any Subsidiary to any person or any security or other instrument that by its
terms is convertible into, exercisable for or exchangeable for capital stock of
the Company.
No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Shares by the Company, in connection with the execution, delivery and
performance of the Agreement by the Company or in connection with the taking by
the Company of any action contemplated thereby, except such as have been
obtained under the Act and the Rules and Regulations and such as may be required
under state securities or "Blue Sky" laws, the rules of the New York Stock
Exchange or by the by-laws and rules of the NASD in connection with the purchase
and distribution by the Underwriters of the Shares to be sold by the Company.
As of the date hereof, the authorized capital stock of the Company is
as set forth in the Registration Statement and the Prospectus under the caption
"Capitalization." The descriptions of the Common Stock and the Preferred Share
Purchase Rights contained in the Prospectus under the heading "Description of
Capital Stock" are accurate in all material respects.
At the Effective Time, the Registration Statement and the Prospectus
(including any documents incorporated by reference into the Prospectus, at the
time they were filed) complied in all material respects as to form with the
requirements of the Act and the Rules and Regulations (except that we express no
opinion or belief with respect to financial statements, schedules and other
-1-
financial or statistical data or information included in or excluded from the
Registration Statement or the Prospectus or incorporated by reference therein).
To our knowledge, any instrument, document, lease, license, contract
or other agreement (collectively, "Documents") required to be described or
referred to in the Registration Statement or the Prospectus has been properly
described or referred to therein and any Document required to be filed as an
exhibit to the Registration Statement has been filed as an exhibit thereto or
has been incorporated by reference as an exhibit in the Registration Statement.
To our knowledge, except as disclosed in the Registration Statement or
the Prospectus, no person or entity has the right to require the registration
under the Act of shares of Common Stock or other securities of the Company by
reason of the filing or effectiveness of the Registration Statement.
To our knowledge, the Company is not in violation of, or in default
with respect to, any law, rule, regulation, order, judgment or decree, except as
may be described in the Prospectus or such as in the aggregate do not now have
and will not in the future have a Material Adverse Effect.
All descriptions in the Prospectus of statutes, regulations or legal
or governmental proceedings (except for descriptions of the Indiana Business
Corporation Law contained therein, as to which we express no opinion) are
accurate and fairly present the information required to be shown.
The execution and delivery by the Company of, and the performance by
the Company of its agreements in, the Agreement do not and will not (i) breach
or result in a default under, cause the time for performance of any obligation
to be accelerated under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the assets of the Company or any of its
Subsidiaries pursuant to the terms of, (x) any indenture, mortgage, deed of
trust, loan agreement, bond, debenture, note agreement, capital lease or other
evidence of indebtedness of which we have knowledge, (y) any voting trust
arrangement or any contract or other agreement to which the Company is a party
that restricts the ability of the Company to issue securities and of which we
have knowledge or (z) any Document filed as an exhibit to, or incorporated as an
exhibit by reference in, the Registration Statement, or (ii) breach or otherwise
violate any existing obligation of the Company under any court or administrative
order, judgment or decree of which we have knowledge.
Delivery of certificates for the Shares will transfer valid and
marketable title thereto to each Underwriter that has purchased such Shares in
good faith and without notice of any adverse claim with respect thereto.
The Company is not subject to registration and regulation as an
"investment company" as such term is defined in the Investment Company Act of
1940, as amended and the rules and regulations thereunder.
-2-
The Shares have been duly authorized for listing by the New York Stock
Exchange upon official notice of issuance.
We have been advised orally by the Commission that the Registration
Statement has become effective under the Act and that no order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or is pending or threatened by the
Commission.
There are no actions, suits, proceedings or investigations pending or,
to our knowledge, overtly threatened in writing against the Company or any of
its Subsidiaries, or any of their respective officers or directors in their
capacities as such, before or by any court, governmental agency or arbitrator
which (i) seek to challenge the legality or enforceability of the Agreement,
(ii) could, if adversely determined, reasonably be expected to result in a
Material Adverse Effect, or (iii) seek to enjoin any of the business activities
of the Company or any of its Subsidiaries or the transactions described in the
Prospectus and of which we have knowledge.
We have participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants of the Company, you and your counsel at which contents of the
Registration Statement and the Prospectus and related matters were discussed
and, without passing upon, or assuming any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus or in any amendment or supplement thereto or in any
document incorporated by reference into the Prospectus or the Registration
Statement, on the basis of the foregoing (relying as to materiality upon the
statements of officers and other representatives of the Company), no facts have
come to our attention that cause us to believe that, both as of the Effective
Date and as of the Closing Date, the Registration Statement or any amendment
thereto contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or supplement
thereto including any documents incorporated by reference into the Prospectus,
at the time such Prospectus was issued, at the time any such amended or
supplemented Prospectus was issued, and at the Closing Date, contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances in which they were made, not misleading (except that we express no
opinion or belief with respect to financial statements, schedules and other
financial or statistical data or information included in or excluded from the
Registration Statement or the Prospectus or incorporated by reference therein).
This letter is furnished by us solely for your benefit in connection
with the closing of the transactions referred to in the Agreement and may not be
used, quoted, circulated to, referred to by or relied upon by, any other person
or for any other purpose without our express written permission, except that
this letter may be relied upon by your counsel in connection with the opinion
letter to be delivered to you pursuant to Section 5(g) of the Agreement.
-3-
SKADDEN, ARPS, SLATE,
XXXXXXX & XXXX (ILLINOIS)
-4-
EXHIBIT E
Form of Opinion of
Counsel to the Company
----------------------
Each of the Company and each of its domestic Significant Subsidiaries
(as defined in Regulation S-X) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation and
has full corporate power and authority to own or lease all the assets owned or
leased by it and to conduct its business as described in the Registration
Statement and the Prospectus.
All of the outstanding shares of Common Stock have been, and the
Shares, when paid for by the Underwriters in accordance with the terms of the
Agreement, will be, duly authorized, validly issued, fully paid and
nonassessable and are not and will not be subject to any preemptive or similar
right under (i) the statutes, judicial and administrative decisions, and the
rules and regulations of the governmental agencies of the State of Indiana and
(ii) the Company's articles of incorporation or by-laws. Except as described in
the Registration Statement or the Prospectus and except for subsequent issuances
of options pursuant to employee benefit plans of the Company and except for
rights issued pursuant to the Company's Rights Plan, to my knowledge, there is
no commitment or arrangement to issue, and there are no outstanding options,
warrants or other rights calling for the issuance of, any share of capital stock
of the Company or any Subsidiary to any person or any security or other
instrument that by its terms is convertible into, exercisable for or
exchangeable for capital stock of the Company.
As of the date hereof, the Company is the sole record owner and, to my
knowledge, the sole beneficial owner of all of the capital stock of each of its
Significant Subsidiaries [subject to qualifications for directors qualifying
shares or pledges under the Bank Credit Facility].
The form of certificate used to evidence the Common Stock complies in
all material respects with all applicable statutory requirements.
To my knowledge, no default by the Company of any of its Significant
Subsidiaries exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any Document filed or
required to be filed as an exhibit to the Registration Statement.
To my knowledge, except as disclosed in the Registration Statement or
the Prospectus, no person or entity has the right to require the registration
under the Act of shares of Common Stock or other securities of the Company by
reason of the filing or effectiveness of the Registration Statement.
-5-
To my knowledge, the Company is not in violation of, or in default
with respect to, any law, rule, regulation, order, judgment or decree, except as
may be described in the Prospectus or such as in the aggregate do not now have
and will not in the future have a Material Adverse Effect.
All descriptions in the Prospectus of the Indiana Business Corporation
Law are accurate and fairly present the information required to be shown.
The Company has full corporate power and authority to enter into the
Agreement, and the Agreement has been duly authorized, executed and delivered by
the Company.
The execution and delivery by the Company of, and the performance by
the Company of its agreements in, the Agreement do not and will not (i) violate
the articles of incorporation or by-laws of the Company or (ii) (assuming
compliance with all applicable state securities and "Blue Sky" laws) violate
applicable provisions of any statute or regulation of the United States or any
states whose statutes or regulations apply to the Company or its assets.
This letter is furnished by me solely for your benefit in connection
with the closing of the transactions referred to in the Agreement and may not be
used, quoted, referred to by, circulated to, or relied upon by, any other person
or for any other purpose without my express written permission, except that this
letter may be relied upon by your counsel in connection with the opinion letter
to be delivered to you pursuant to Section 5(g) of the Agreement.
XXXXXX XXXXXX
GENERAL COUNSEL
TOKHEIM CORPORATION
-6-