Fine Host Corporation
$175,000,000
5% Convertible Subordinated Notes Due 2004
Purchase Agreement
October 21, 1997
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
NationsBanc Xxxxxxxxxx
Securities, Inc.
Xxxxx Xxxxxx Inc.
Xxxxx Xxxxxxx Inc.
$175,000,000
5% Convertible Subordinated Notes due 2004
of Fine Host Corporation
PURCHASE AGREEMENT
October 21, 1997
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
NationsBanc Xxxxxxxxxx Securities, Inc.
Xxxxx Xxxxxx Inc.
Xxxxx Xxxxxxx Inc.
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Fine Host Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation ("DLJ"), NationsBanc Xxxxxxxxxx Securities, Inc., Xxxxx Xxxxxx Inc.,
and Xxxxx Xxxxxxx Inc. (each, an "Initial Purchaser" and, collectively, the
"Initial Purchasers") an aggregate of $175,000,000 in principal amount of its 5%
Convertible Subordinated Notes due 2004 (the "Initial Notes"), subject to the
terms and conditions set forth herein. The Company also proposes to issue and
sell to the Initial Purchasers not more than an additional aggregate $25,000,000
in principal amount of its 5% Convertible Subordinated Notes due 2004 (the
"Additional Notes" and, together with the Initial Notes, the "Notes"), subject
to the terms and conditions set forth herein. The Notes are to be issued
pursuant to the provisions of an indenture (the "Indenture"), to be dated as of
the Closing Date (as defined below), between the Company and The Bank of New
York, as trustee (the "Trustee"). The Notes will be convertible into shares of
the common stock, par value $0.01 per share, of the Company (the "Common Stock")
at an initial conversion rate, subject to adjustment, set forth in the
Indenture. Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Indenture.
The Notes will be offered and sold to the Initial Purchasers
pursuant to one or more exemptions from the registration requirements under the
Securities Act of 1933, as amended (the "Act"). The Company has prepared a
preliminary offering memorandum, dated October 10, 1997 (the "Preliminary
Offering Memorandum") and a final offering memorandum, dated October 21, 1997
(the "Offering Memorandum"), relating to the Notes.
Upon original issuance thereof, and until such time as the
same is no longer required pursuant to the Indenture, the Notes (and all
securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT)(A "QIB"), (B) IT IS ACQUIRING THIS NOTE
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (AN "IAI"), (2) AGREES THAT IT WILL NOT RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE
(THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND
"UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS NOTE IN VIOLATION OF THE FOREGOING."
(a) On the basis of the representations, warranties and
covenants contained in this Agreement, and subject to the terms and conditions
contained herein, the Company agrees to issue and sell to the Initial
Purchasers, and the Initial Purchasers agree, severally and not jointly, to
purchase from the Company, the principal amounts of Initial Notes set forth
opposite the name of such Initial Purchaser on Schedule A hereto at a purchase
price equal to 97% of the principal amount thereof (the "Purchase Price"). The
Purchase Price shall not include interest accrued on the Initial Notes during
the period, if any, from the date of original issuance of the Notes to and
including the Closing Date.
(b) On the basis of the representations, warranties and
covenants in this Agreement, and subject to the terms and conditions contained
herein, the Company hereby grants to the Initial Purchasers the right to
purchase at the Initial Purchasers' election on the Option Closing Date (as
defined below) up to $25,000,000 in aggregate principal amount of Additional
Notes. Additional Notes may be purchased by the Initial Purchasers solely for
the purpose of covering over-allotments made in connection with the sale of the
Initial Notes. The Initial Purchasers may exercise their right to purchase
Additional Notes in whole or in part from time to time by giving written notice
thereof (each, an "Exercise Notice") to the Company at any time on one or more
occasions within 30 days after the date of this Agreement. DLJ shall give any
such Exercise Notice on behalf of the Initial Purchasers and such notice shall
specify the aggregate principal amount of Additional Notes to be purchased
pursuant to such exercise and the date for payment and delivery thereof. The
date specified in any such notice (the "Option Closing Date") shall be a
business day (i) no earlier than the Closing Date, (ii) no later than ten
business days after such notice has been given and (iii) no earlier than two
business days after such notice has been given. If any Additional Notes are to
be purchased, each Initial Purchaser, severally and not jointly, agrees to
purchase from the Company the number of Additional Notes which bears the same
proportion to the total number of Additional Notes to be purchased from the
Company as the number of Initial Notes set forth opposite the name of such
Initial Purchaser in Schedule A bears to the total number of Initial Notes at
the purchase price set forth in Section 2(a) hereof. The purchase price for
Additional Notes shall not include interest accrued on the Additional Notes
during the period from the date of original issuance of Notes to and including
the Option Closing Date.
The Initial Purchasers have advised the Company that the
Initial Purchasers will make offers (the "Exempt Resales") of the Notes
purchased hereunder on the terms set forth in the Offering Memorandum, as
amended or supplemented, solely to (i) persons whom the Initial Purchasers
reasonably believe to be "qualified institutional buyers" as defined in Rule
144A under the Act ("QIBs"), (ii) not more than ten other institutional
"accredited investors," as defined in Rule 501(a) (1), (2), (3) or (7) under the
Act, that make certain representations and agreements to the Company (each, an
"Accredited Institution"), and (iii) to persons permitted to purchase the Notes
in offshore transactions in reliance upon Regulation S under the Act (each, a
"Regulation S Purchaser") (such persons specified in clauses (i), (ii) and (iii)
being referred to herein as the "Eligible Purchasers"). The Initial Purchasers
will offer the Notes to Eligible Purchasers initially at a price equal to 100%
of the principal amount thereof. Such price may be changed at any time without
notice.
Holders (including subsequent transferees) of the Notes will
have the registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated the Closing Date, in substantially
the form of Exhibit A hereto, for so long as such Notes constitute "Transfer
Restricted Securities" (as defined in the Registration Rights Agreement).
Pursuant to the Registration Rights Agreement, the Company will agree to file
with the Securities and Exchange Commission (the "Commission") a shelf
registration statement pursuant to Rule 415 under the Act (the "Registration
Statement") relating to the resale by certain holders of the Notes and to use
its best efforts to cause such Registration Statement to be declared and remain
effective and usable for the periods specified in the Registration Rights
Agreement. This Agreement, the Indenture, the Notes and the Registration Rights
Agreement are hereinafter sometimes referred to collectively as the "Operative
Documents."
4. Delivery and Payment.
(a) Delivery of, and payment of the Purchase Price for, the
Initial Notes shall be made at the offices of Xxxxxx & Xxxxxxx or such other
location as may be mutually acceptable. Such delivery and payment shall be made
at 9:00 a.m. New York City time, on October 27, 1997 or at such other time as
shall be agreed upon by the Initial Purchasers and the Company. The time and
date of such delivery and the payment are herein called the "Closing Date."
(b) Notes sold by the Initial Purchasers to QIBs and
pursuant to Regulations S will be represented by one or more Notes in definitive
global form, registered in the name of Cede & Co., as nominee of the Depository
Trust Company ("DTC"), having an aggregate principal amount corresponding to the
aggregate principal amount of the Notes sold to such QIBs and pursuant to
Regulations S (collectively, the "Global Notes"). Notes sold by the Initial
Purchasers to Accredited Institutions will be represented by one or more Notes
in definitive form, registered in the name of such Accredited Institutions,
having an aggregate principal amount corresponding to the aggregate principal
amount of the Notes sold to such Accredited Institutions (collectively, the
"Accredited Institution Notes"). The Global Notes and the Accredited Institution
Notes shall be delivered by the Company to the Initial Purchasers (or as the
Initial Purchasers direct) in each case with any transfer taxes thereon duly
paid by the Company against payment by the Initial Purchasers of the Purchase
Price thereof by wire transfer in same day funds to the order of the Company.
The Global Notes and the Accredited Institution Notes shall be made available to
the Initial Purchasers for inspection not later than 9:30 a.m., New York City
time, on the business day immediately preceding the Closing Date.
(c) On any Option Closing Date, the Company shall deliver to
the Initial Purchasers, and the obligations of the Initial Purchasers to
purchase the Additional Notes shall be conditioned upon receipt of, supplemental
opinions, certificates and letters confirming as of such date the opinions,
certificates and letters delivered on the Closing Date pursuant to Section 9
hereof.
The Company hereby agrees with the Initial Purchasers as
follows:
(a) To advise the Initial Purchasers promptly and, if
requested by the Initial Purchasers, confirm such advice in writing, (i) of the
issuance by any state securities commission of any stop order suspending the
qualification or exemption from qualification of any Notes for offering or sale
in any jurisdiction designated by the Initial Purchasers pursuant to Section
5(e) hereof, or the initiation of any proceeding by any state securities
commission or any other federal or state regulatory authority for such purpose
and (ii) of the happening of any event during the period referred to in Section
5(c) below that would result in the Offering Memorandum including an untrue
statement of a material fact or omitting to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The Company shall use its best efforts to prevent the
issuance of any stop order or order suspending the qualification or exemption of
any Notes under any state securities or Blue Sky laws and, if at any time any
state securities commission or other federal or state regulatory authority shall
issue an order suspending the qualification or exemption of any Notes under any
state securities or Blue Sky laws, the Company shall use its best efforts to
obtain the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers to the Company as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any amendments
or supplements thereto, as the Initial Purchasers may reasonably request for the
time period specified in Section 5(c). Subject to the Initial Purchasers'
compliance with its representations and warranties and agreements set forth in
Section 7 hereof, the Company consents to the use of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments and supplements
thereto required pursuant hereto, by the Initial Purchasers in connection with
Exempt Resales.
(c) During such period as in the opinion of counsel for the
Initial Purchasers an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchasers and in connection with
market-making activities of the Initial Purchasers for so long as any Notes are
outstanding, (i) not to make any amendment or supplement to the Offering
Memorandum of which the Initial Purchasers shall not previously have been
advised or to which the Initial Purchasers shall reasonably object after being
so advised (except to the extent any amendment or supplement to which the
Initial Purchasers shall have objected is necessary in the opinion of counsel to
the Company to make the statements therein not misleading) and (ii) to prepare
promptly upon the Initial Purchasers' reasonable request, any amendment or
supplement to the Offering Memorandum which may be necessary or advisable in
connection with such Exempt Resales or such market-making activities (except to
the extent any amendment or supplement would in the opinion of counsel to the
Company make the statements therein misleading).
(d) If, during the period referred to in Section 5(c) above,
any event shall occur or condition shall exist as a result of which, in the
opinion of counsel to the Initial Purchasers, it becomes necessary to amend or
supplement the Offering Memorandum in order to make the statements therein, in
the light of the circumstances when such Offering Memorandum is delivered to an
Eligible Purchaser, not misleading, or if, in the opinion of counsel to the
Initial Purchasers, it is necessary to amend or supplement the Offering
Memorandum to comply with any applicable law, forthwith to prepare an
appropriate amendment or supplement to such Offering Memorandum so that the
statements therein, as so amended or supplemented, will not, in the light of the
circumstances when it is so delivered, be misleading or so that such Offering
Memorandum will comply with applicable law (except in each case to the extent
any amendment or supplement would in the opinion of counsel to the Company make
the statements therein misleading), and to furnish to the Initial Purchasers and
such other persons as the Initial Purchasers may designate such number of copies
thereof as the Initial Purchasers may reasonably request.
(e) Prior to the sale of all Notes pursuant to Exempt
Resales as contemplated hereby, to cooperate with the Initial Purchasers and
counsel to the Initial Purchasers in connection with the registration or
qualification of the Notes for offer and sale to the Initial Purchasers and
pursuant to Exempt Resales under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may request and to continue such
registration or qualification in effect so long as required for Exempt Resales
and to file such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification; provided,
however, that the Company shall not be required in connection therewith to
qualify as a foreign corporation in any jurisdiction in which it is not now so
qualified or to take any action that would subject it to general consent to
service of process or taxation in any jurisdiction in which it is not now so
subject.
(f) So long as the Notes are outstanding, (i) to mail and
make generally available as soon as practicable after the end of each fiscal
year to the record holders of the Notes a financial report of the Company and
its subsidiaries on a consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
the Company's independent public accountants and (ii) to mail and make generally
available as soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and a
consolidated statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such period, and
for the period from the beginning of such year to the close of such quarterly
period, together with comparable information for the corresponding periods of
the preceding year.
(g) So long as the Notes are outstanding, to furnish to the
Initial Purchasers as soon as available copies of all reports or other
communications furnished by the Company to its security holders or furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and/or its subsidiaries as the Initial
Purchasers may reasonably request.
(h) So long as any of the Notes remain outstanding and
during any period in which the Company is not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make
available to any holder of Notes in connection with any sale thereof and any
prospective purchaser of such Notes from such holder, the information ("Rule
144A Information") required by Rule 144A(d)(4) under the Act.
(i) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of the obligations of the Company
under this Agreement, including: (i) the fees, disbursements and expenses of
counsel to the Company and accountants of the Company in connection with the
sale and delivery of the Notes to the Initial Purchasers and pursuant to Exempt
Resales, and all other fees and expenses in connection with the preparation,
printing, filing and distribution of the Preliminary Offering Memorandum, the
Offering Memorandum and all amendments and supplements to any of the foregoing
(including financial statements), including the mailing and delivering of copies
thereof to the Initial Purchasers and persons designated by it in the quantities
specified herein, (ii) all costs and expenses related to the transfer and
delivery of the Notes to the Initial Purchasers and pursuant to Exempt Resales,
including any transfer or other taxes payable thereon, (iii) all costs of
printing or producing this Agreement, the other Operative Documents and any
other agreements or documents in connection with the offering, purchase, sale or
delivery of the Notes, (iv) all expenses in connection with the registration or
qualification of the Notes for offer and sale under the securities or Blue Sky
laws of the several states and all costs of printing or producing any
preliminary and supplemental Blue Sky memoranda in connection therewith
(including the filing fees and fees and disbursements of counsel for the Initial
Purchasers in connection with such registration or qualification and memoranda
relating thereto), (v) all expenses and listing fees in connection with the
application for quotation of the Notes in the National Association of Securities
Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"), (vi) the
fees and expenses of the Trustee and the Trustee's counsel in connection with
the Indenture and the Notes, (vii) the costs and charges of any transfer agent,
registrar and/or depository (including DTC), (viii) any fees charged by rating
agencies for the rating of the Notes, (ix) all costs and expenses of the
Registration Statement as set forth in the Registration Rights Agreement, and
(x) and all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise made
in this Section, it being understood that the fees and expenses of counsel to
the Initial Purchasers (other than Blue Sky fees and expenses) shall be borne by
the Initial Purchasers.
(j) To use its best efforts to effect the inclusion of the
Notes in PORTAL and to maintain the listing of the Notes on PORTAL for so long
as any Notes outstanding are not registered under the Act.
(k) To obtain the approval of DTC for "book-entry" transfer
of the Notes, and to comply in all material respects with all of its agreements
set forth in the representation letters of the Company to DTC relating to the
approval of the Notes by DTC for "book-entry" transfer.
(l) Not to issue, sell, contract to sell or otherwise
dispose of any Common Stock or any securities convertible into or exchangeable
or exercisable for Common Stock, for a period of 90 days following the date of
this Agreement, without the prior written consent of DLJ on behalf of the
Initial Purchasers; provided that the Company may issue Common Stock upon the
exercise of (i) the Notes, (ii) outstanding stock options or warrants or (iii)
stock options issued pursuant to existing stock option plans and employee
benefit plans.
(m) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Notes to the Initial Purchasers or
pursuant to Exempt Resales in a manner that would require the registration of
any such sale of the Notes under the Act.
(n) Not to voluntarily claim, and to actively resist any
attempts to claim, the benefit of any usury laws against the holders of any
Notes.
(o) To use its best efforts to do and perform in all
material respects all things required or necessary to be done and performed
under this Agreement by it prior to the Closing Date and to satisfy in all
material respects all conditions precedent to the delivery of the Notes.
6. Representations, Warranties and Agreements of the
Company. As of the date hereof, the Company represents and warrants to, and
agrees with, the Initial Purchasers that:
(a) The Offering Memorandum does not, and any supplement or
amendment thereto will not, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
contained in this paragraph (a) shall not apply to statements in or omissions
from the Offering Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchasers furnished to the Company in
writing by the Initial Purchasers expressly for use therein. No stop order
preventing the use of the Preliminary Offering Memorandum or the Offering
Memorandum, or any amendment or supplement thereto, or any order asserting that
any of the transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
(b) The Company's Significant Subsidiaries, as defined under
Rule 1-02 of Regulation S-X (the "Significant Subsidiaries") are listed in
Schedule B hereto. The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, with full power and
authority (corporate and other) to own and lease their properties and conduct
their respective businesses as described in the Offering Memorandum, except as
would not have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries taken as
a whole (a "Material Adverse Effect"); the Company owns all of the outstanding
capital stock of its subsidiaries free and clear of all claims, liens, charges
and encumbrances; the Company and each of its subsidiaries are in possession of
and operating in compliance with all authorizations, licenses, permits,
consents, certificates and orders material to the conduct of their respective
businesses, all of which are valid and in full force and effect except where the
failure to possess or be operating in compliance with such authorizations,
licenses, permits, consents, certificates or orders would not have a Material
Adverse Effect; the Company and each of its subsidiaries are duly qualified to
do business and in good standing as foreign corporations in each jurisdiction in
which the ownership or leasing of properties or the conduct of their respective
businesses requires such qualification, except for jurisdictions in which the
failure to so qualify would not have a Material Adverse Effect; and, to the
knowledge of the Company, no proceeding has been instituted in any such
jurisdiction, revoking, limiting or curtailing, or seeking to revoke, limit or
curtail, such power and authority or qualification.
(c) The Company has an authorized and outstanding capital
stock as set forth under the heading "Capitalization" in the Offering
Memorandum; the issued and outstanding shares of Common Stock of the Company
have been duly authorized and validly issued, are fully paid and nonassessable,
have been issued in compliance with all federal and state securities laws, were
not be issued in violation of any preemptive rights or other rights to subscribe
for or purchase securities or subject to any such rights, and conform in all
material respects to the description thereof contained in the Offering
Memorandum. All issued and outstanding shares of capital stock of each
subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable. Except as disclosed in or contemplated by the Offering Memorandum
and the financial statements of the Company, and the related notes thereto,
included in the Offering Memorandum, neither the Company nor any subsidiary has
outstanding any options to purchase, or any preemptive rights or other rights to
subscribe for or to purchase, any securities or obligations convertible into, or
any contracts or commitments to issue or sell, shares of its capital stock or
any such options, rights, convertible securities or obligations. The description
of the Company's stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted and exercised thereunder,
set forth in the Offering Memorandum accurately and fairly presents the
information required to be shown with respect to such plans, arrangements,
options and rights.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The Indenture has been duly authorized by the Company
and, on the Closing Date, will have been validly executed and delivered by the
Company. Assuming the due authorization, valid execution and delivery by the
Trustee, when the Indenture has been duly executed and delivered by the Company,
the Indenture will be a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability. On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of 1939, as
amended (the "TIA" or "Trust Indenture Act"), and the rules and regulations of
the Commission applicable to an indenture which is qualified thereunder except
that the Indenture will not be so qualified.
(f) The Notes have been duly authorized and, on the Closing
Date, will have been validly executed and delivered by the Company. When the
Notes have been issued, executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement and the Indenture, the
Notes will be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. On the
Closing Date, the Notes will conform in all material respects to the description
thereof contained in the Offering Memorandum.
(g) The Registration Rights Agreement has been duly
authorized by the Company and, on the Closing Date, will have been duly executed
and delivered by the Company. Assuming the due authorization, valid execution
and delivery by each of the Initial Purchasers, when the Registration Rights
Agreement has been duly executed and delivered by the Company, the Registration
Rights Agreement will be a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability. On the Closing Date, the Registration Rights Agreement
will conform in all material respects to the description thereof in the Offering
Memorandum.
(h) The shares of Common Stock initially to be issued by the
Company upon conversion of the Notes have been duly authorized and reserved for
issuance upon such conversion and, when issued, delivered and paid for upon such
conversion in the manner set forth in the Indenture, will be duly authorized,
validly issued, fully paid and nonassessable, and will conform in all material
respects to the description thereof contained in the Offering Memorandum. No
preemptive rights or other rights to subscribe for or purchase any security of
the Company exist with respect to the issuance and sale of the Common Stock by
the Company pursuant to the Indenture (other than those which have been waived).
No stockholder of the Company has any right to require the Company to register
the sale of any shares owned by such stockholder under the Act in the shelf
registration statement contemplated by the Registration Rights Agreement that
will not have been irrevocably waived prior to such registration. No further
approval or authority of the stockholders or the Board of Directors of the
Company will be required for the issuance and sale of the Common Stock upon
conversion of the Notes as contemplated in the Indenture.
(i) The making and performance of this Agreement and the
other Operative Documents by the Company, compliance by the Company with all the
provisions hereof and thereof and the consummation of the transactions
contemplated herein and therein will not violate any provision of the
certificate of incorporation or bylaws, or other organizational documents, of
the Company or any of its subsidiaries, and will not conflict with, result in
the breach or violation of, or constitute, either by itself or upon notice or
the passage of time or both, a default under any agreement, mortgage, deed of
trust, lease, franchise, license, indenture, permit or other instrument 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 respective properties may be bound or
affected, any statute or any authorization, judgment, decree, order, rule or
regulation of any court or any regulatory body, administrative agency or other
governmental body applicable to the Company or any of its subsidiaries or any of
their respective properties except for such conflicts, breaches or violations or
defaults which would not have a Material Adverse Effect. No consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body is required for the execution and delivery of
this Agreement or the consummation of the transactions contemplated by this
Agreement, except for compliance with (i) the Act and the Blue Sky laws
applicable to the private offering of the Notes by the Initial Purchasers and
(ii) the Exchange Act and the TIA as applicable to the shelf registration
statement filed pursuant to the Registration Rights Agreement.
(j) Except as disclosed in the Offering Memorandum, and
except as to defaults which individually or in the aggregate would not be
material to the Company and its subsidiaries taken as a whole, neither the
Company nor any of its subsidiaries is in violation or default of any provision
of its certificate of incorporation or bylaws, or other organizational
documents, or is in breach of or default with respect to any provision of any
agreement, judgment, decree, order, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument to which it is a party or by
which it or any of its properties are bound; and there does not exist any state
of facts which constitutes an event of default on the part of the Company or any
such subsidiary as defined in such documents or which, with notice or lapse of
time or both, would constitute such an event of default, which event of default
would result in a Material Adverse Effect.
(k) There are no contracts or other documents required to be
described in the Offering Memorandum which have not been described or filed. The
contracts so described in Offering Memorandum are in full force and effect on
the date hereof, except as would not have a Material Adverse Effect; and neither
the Company nor any of its subsidiaries, nor to the best of the Company's
knowledge, any other party is in breach of or default under any of such
contracts, except as would not have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum, there
are no legal or governmental actions, suits or proceedings pending or, to the
best of the Company's knowledge, threatened to which the Company or any of its
subsidiaries is or may be a party or of which property owned or leased by the
Company or any of its subsidiaries is or may be the subject, or related to
environmental or discrimination matters, which actions, suits or proceedings
might, individually or in the aggregate, prevent or adversely affect the
Company's ability to consummate the transactions contemplated by this Agreement
or result in a Material Adverse Effect; and no labor disturbance by the
employees of the Company or any of its subsidiaries exists or, to the Company's
knowledge, is imminent which might be expected to result in a Material Adverse
Effect. Neither the Company nor any of its subsidiaries is a party or subject to
the provisions of any material injunction, judgment, decree or order of any
court, regulatory body, administrative agency or other governmental body.
(m) The Company or the applicable subsidiary has good and
marketable title to all the properties and assets reflected as owned in the
financial statements described herein (or elsewhere in the Offering Memorandum),
subject to no lien, mortgage, pledge, charge or encumbrance of any kind except
(i) those, if any, reflected in such financial statements (or elsewhere in the
Offering Memorandum), or (ii) those which are not material in amount and do not
materially adversely affect the use made and proposed to be made of such
property by the Company and its subsidiaries. The Company or the applicable
subsidiary holds its leased properties under valid and binding leases, with such
exceptions as are not materially significant in relation to the business of the
Company. Except as disclosed in the Offering Memorandum, the Company owns or
leases all such properties as are necessary to its operations as now conducted.
(n) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement): (i) the Company and its subsidiaries have not incurred
any material liabilities or obligations, indirect, direct or contingent, or
entered into any material agreement or other transaction which is not in the
ordinary course of business or which could result in a material reduction in the
future earnings of the Company and its subsidiaries; (ii) the Company and its
subsidiaries have not sustained any material loss or interference with their
respective businesses or properties from fire, flood, windstorm, accident or
other calamity, whether or not covered by insurance; (iii) the Company has not
paid or declared any dividends or other distributions with respect to its
capital stock and the Company and its subsidiaries are not in default in the
payment of principal or interest on any outstanding debt obligations; (iv) there
has not been any change in the capital stock or indebtedness material to the
Company and its subsidiaries (other than in the ordinary course of business and
as otherwise contemplated by this Agreement); and (v) there has not been any
material adverse change in the condition (financial or otherwise), business,
properties, results of operations or prospects of the Company and its
subsidiaries taken as a whole.
(o) Except as disclosed in or specifically contemplated by
the Offering Memorandum, the Company and its subsidiaries have sufficient
trademarks, trade names, patent rights, mask works, copyrights, licenses,
approvals and governmental authorizations to conduct their businesses as now
conducted; except for "Fine Host" and the Company's pear symbol, the expiration
of any trademarks, trade names, patent rights, mask works, copyrights, licenses,
approvals or governmental authorizations would not have a material adverse
effect on the condition (financial or otherwise), business, results of
operations or prospects of the Company and its subsidiaries taken as a whole;
and the Company has no knowledge of any material infringement by it or its
subsidiaries of trademark, trade name rights, patent rights, mask works,
copyrights, licenses, trade secret or other similar rights of others, and the
Company has no knowledge of any claim being made against the Company or its
subsidiaries regarding trademark, trade name, patent, mask work, copyright,
license, trade secret or other infringement which could have a material adverse
effect on the condition (financial or otherwise), business, results of
operations or prospects of the Company and its subsidiaries taken as a whole.
(p) The Company has not been advised, and has no reason to
believe, that either it or any of its subsidiaries is not conducting business in
compliance with all applicable laws, rules and regulations of the jurisdictions
in which it is conducting business, including, without limitation, all
applicable local, state and federal environmental laws and regulations; except
where failure to be so in compliance would not result in a Material Adverse
Effect.
(q) The Company and its subsidiaries have filed all federal,
state and foreign income and franchise tax returns required to be filed and have
paid all taxes shown as due thereon other than those being contested in good
faith and as to which adequate reserves have been established; and the Company
has no knowledge of any tax deficiency which has been or might be asserted or
threatened against the Company or its subsidiaries which could result in a
Material Adverse Effect.
(r) The Company has not distributed and will not distribute
prior to the Closing Date any offering material in connection with the offering
and sale of the Notes other than the Preliminary Offering Memorandum dated
October 10, 1997, and the Offering Memorandum.
(s) Each of the Company and its subsidiaries maintains
insurance of the types and in amounts which the Company believes to be adequate
for its business, including, but not limited to, insurance covering real and
personal property owned or leased by the Company and its subsidiaries against
theft, damage, destruction, acts of vandalism and all other risks customarily
insured against, all of which insurance is in full force and effect except where
the failure to maintain such insurance would not have a Material Adverse Effect.
(t) Neither the Company nor any of its subsidiaries has at
any time during the last five years (i) made any unlawful contribution to any
candidate for foreign office, or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal or state governmental
officer or official, or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the United
States of any jurisdiction thereof.
(u) The Company has not taken and will not take, directly or
indirectly, any action designed to or that might be reasonably expected to cause
or result in stabilization or manipulation of the price of the Notes or the
Common Stock underlying the Notes to facilitate the sale or resale of the Notes.
(v) Neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws") or any
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the rules and regulations promulgated thereunder, except for such
violations which, singly or in the aggregate, would not have a Material Adverse
Effect.
(w) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect.
(x) Each of the Company and its subsidiaries has such
permits, licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "Authorization") of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including without limitation,
under any applicable Environmental Laws, as are necessary to own, lease, license
and operate its respective properties and to conduct its business, except where
the failure to have any such Authorization or to make any such filing or notice
would not, singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of the Company and
its subsidiaries is in compliance in all material respects with all the terms
and conditions thereof and with the rules and regulations of the authorities and
governing bodies having jurisdiction with respect thereto; and no event has
occurred (including, without limitation, the receipt of any notice from any
authority or governing body) which allows or, after notice or lapse of time or
both, would allow, revocation, suspension or termination of any such
Authorization or results or, after notice or lapse of time or both, would result
in any other impairment of the rights of the holder of any such Authorization;
and such Authorizations contain no restrictions that are unduly burdensome to
the Company or any of its subsidiaries; except where such failure to be valid
and in full force and effect or to be in compliance, the occurrence of any such
event or the presence of any such restriction would not, singly or in the
aggregate, have a Material Adverse Effect.
(y) The accountants, Deloitte & Touche LLP, that have
certified the financial statements and supporting schedules included in the
Preliminary Offering Memorandum and the Offering Memorandum are independent
public accountants with respect to the Company, as required by the Act and the
Exchange Act. The historical financial statements, together with related
schedules and notes, set forth in the Preliminary Offering Memorandum and the
Offering Memorandum comply as to form in all material respects with the
requirements applicable to registration statements on Form S-3 under the Act.
(z) The historical financial statements, together with
related schedules and notes forming part of the Offering Memorandum (and any
amendment or supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of the Company
and its subsidiaries on the basis stated in the Offering Memorandum at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; and the other financial and
statistical information and data set forth in the Offering Memorandum (and any
amendment or supplement thereto) are, in all material respects, accurately
presented and prepared on a basis consistent with such financial statements and
the books and records of the Company.
(aa) The Company is not and, after giving effect to the
offering and sale of the Notes and the application of the net proceeds thereof
as described in the Offering Memorandum, will not be, an "investment company,"
as such term is defined in the Investment Company Act of 1940, as amended.
(bb) Neither the Company nor any of its subsidiaries nor any
agent thereof acting on the behalf of them has taken, and none of them will
take, any action that might cause this Agreement or the issuance or sale of the
Notes to violate Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part
220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of
the Board of Governors of the Federal Reserve System.
(cc) no "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act (i) has imposed (or has informed the Company that it is considering
imposing) any condition (financial or otherwise) on the Company's retaining any
rating assigned to the Company or any securities of the Company or (ii) has
indicated to the Company that it is considering (a) the downgrading, suspension,
or withdrawal of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b) any change in
the outlook for any rating of the Company or any securities of the Company.
(dd) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its date, contains all the information specified in,
and meeting the requirements of, Rule 144A(d)(4) under the Act.
(ee) When the Notes are issued and delivered pursuant to
this Agreement, the Notes will not be of the same class (within the meaning of
Rule 144A under the Act) as any security of the Company that is listed on a
national securities exchange registered under Section 6 of the Exchange Act or
that is quoted in a United States automated inter-dealer quotation system.
(ff) No form of general solicitation or general advertising
(as defined in Regulation D under the Act) was used by the Company or any of its
representatives (other than the Initial Purchasers, as to whom the Company makes
no representation) in connection with the offer and sale of the Notes
contemplated hereby, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine, or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising. No
securities of the same class as the Notes have been issued and sold by the
Company within the six-month period immediately prior to the date hereof.
(gg) None of the Company nor any of its affiliates or any
person acting on its or their behalf (other than the Initial Purchasers, as to
whom the Company makes no representation) has engaged or will engage in any
directed selling efforts within the meaning of Regulation S under the Act
("Regulation S") with respect to the Notes.
(hh) The Notes offered and sold in reliance on Regulation S
have been and will be offered and sold only in offshore transactions.
(ii) The sale of the Notes pursuant to Regulation S is not
part of a plan or scheme to evade the registration provisions of the Act.
(jj) The Company and its affiliates and all persons acting
on its behalf (other than the Initial Purchasers, as to whom the Company makes
no representation) have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the offering of the
Notes outside the United States and, in connection therewith, the Offering
Memorandum will contain the disclosure required by Rule 902(h).
(kk) The Company is a "reporting issuer", as defined in Rule
902 under the Act.
(ll) No registration under the Act of the Notes is required
for the sale of the Notes to the Initial Purchasers as contemplated hereby or
for the Exempt Resales assuming the accuracy of (i) the Initial Purchasers'
representations and warranties and agreements set forth in Section 7 hereof and
(ii) as to any Accredited Institution, the representations and warranties and
agreements set forth in the Accredited Investor Letter attached as Annex A to
the Offering Memorandum.
(mm) Each certificate signed by any officer of the Company
and delivered to the Initial Purchasers or counsel for the Initial Purchasers
shall be deemed to be a representation and warranty by the Company to the
Initial Purchasers as to the matters covered thereby.
The Company acknowledges that the Initial Purchasers and,
for purposes of the opinions to be delivered to the Initial Purchasers pursuant
to Section 9 hereof, counsel to the Company and counsel to the Initial
Purchasers will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
7. Initial Purchasers' Representations and Warranties. Each
of the Initial Purchasers, severally and not jointly, represents and warrants to
the Company, and agrees that:
(a) Such Initial Purchaser is either a QIB or an Accredited
Institution, in either case, with such knowledge and experience in financial and
business matters as is necessary in order to evaluate the merits and risks of an
investment in the Notes.
(b) Such Initial Purchaser (A) is not acquiring the Notes
with a view to any distribution thereof or with any present intention of
offering or selling any of the Notes in a transaction that would violate the Act
or the securities laws of any state of the United States or any other applicable
jurisdiction and (B) will be reoffering and reselling the Notes only to (x) QIBs
in reliance on the exemption from the registration requirements of the Act
provided by Rule 144A, (y) not more than ten Accredited Institutions that
execute and deliver a letter containing certain representations and agreements
in the form attached as Annex A to the Offering Memorandum and (z) in offshore
transactions in reliance upon Regulation S under the Act.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Notes pursuant
hereto, including, but not limited to, articles, notices or other communications
published in any newspaper, magazine or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with
Exempt Resales, such Initial Purchaser will solicit offers to buy the Notes only
from, and will offer to sell the Notes only to, Eligible Purchasers. Each
Initial Purchaser further agrees that it will offer to sell the Notes only to,
and will solicit offers to buy the Notes only from (A) Eligible Purchasers that
the Initial Purchasers reasonably believe are QIBs, (B) Accredited Institutions
who make the representations contained in, and execute and return to the Initial
Purchasers, a certificate in the form of Annex A attached to the Offering
Memorandum and (C) Regulation S Purchasers, in each case, that agree that (x)
the Notes purchased by them may be resold, pledged or otherwise transferred
within the time period referred to under Rule 144(k) (taking into account the
provisions of Rule 144(d) under the Act, if applicable) under the Act, as in
effect on the date of the transfer of such Notes, only (I) to the Company or any
of its subsidiaries, (II) to a person whom the seller reasonably believes is a
QIB purchasing for its own account or for the account of a QIB in a transaction
meeting the requirements of Rule 144A under the Act, (III) in an offshore
transaction (as defined in Rule 902 under the Act) meeting the requirements of
Rule 904 of the Act, (IV) in a transaction meeting the requirements of Rule 144
under the Act, (V) to an Accredited Institution that, prior to such transfer,
furnishes the Trustee a signed letter containing certain representations and
agreements relating to the registration of transfer of such Note (the form of
which is substantially the same as Annex A to the Offering Memorandum) and, if
such transfer is in respect of an aggregate principal amount of Notes less than
$250,000, an opinion of counsel acceptable to the Company that such transfer is
in compliance with the Act, (VI) in accordance with another exemption from the
registration requirements of the Act (and based upon an opinion of counsel
acceptable to the Company) or (VII) pursuant to an effective registration
statement and, in each case, in accordance with the applicable securities laws
of any state of the United States or any other applicable jurisdiction and (y)
they will deliver to each person to whom such Notes or an interest therein is
transferred a notice substantially to the effect of the foregoing.
(e) None of such Initial Purchaser nor any of its affiliates
or any person acting on its or their behalf has engaged or will engage in any
directed selling efforts within the meaning of Regulation S with respect to the
Notes.
(f) The Notes offered and sold by such Initial Purchaser
pursuant hereto in reliance on Regulation S have been and will be offered and
sold only in offshore transactions.
(g) The sale of the Notes offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S is not part of a plan or
scheme to evade the registration provisions of the Act.
(h) Such Initial Purchaser agrees that it has not offered or
sold and will not offer or sell the Notes in the United States or to, or for the
benefit or account of, a U.S. Person (other than a distributor), in each case,
as defined in Rule 902 under the Act (i) as part of its distribution at any time
and (ii) otherwise until 40 days after the later of the commencement of the
offering of the Notes pursuant hereto and the Closing Date, other than in
accordance with Regulation S of the Act or another exemption from the
registration requirements of the Act. Such Initial Purchaser agrees that, during
such 40-day restricted period, it will not cause any advertisement with respect
to the Notes (including any "tombstone" advertisement) to be published in any
newspaper or periodical or posted in any public place and will not issue any
circular relating to the Notes, except such advertisements as are permitted by
and include the statements required by Regulation S.
(i) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Notes by it to any distributor, dealer or person
receiving a selling concession, fee or other remuneration during the 40-day
restricted period referred to in Rule 903(c)(2) under the Act, it will send to
such distributor, dealer or person receiving a selling concession, fee or other
remuneration a confirmation or notice to substantially the following effect:
"The Notes covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not
be offered and sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of your distribution at any
time or (ii) otherwise until 40 days after the later of the
commencement of the Offering and the Closing Date, except in either
case in accordance with Regulation S under the Securities Act (or Rule
144A or to Accredited Institutions in transactions that are exempt from
the registration requirements of the Securities Act), and in connection
with any subsequent sale by you of the Notes covered hereby in reliance
on Regulation S during the period referred to above to any distributor,
dealer or person receiving a selling concession, fee or other
remuneration, you must deliver a notice to substantially the foregoing
effect. Terms used above have the meanings assigned to them in
Regulation S."
(j) Such Initial Purchaser further represents and agrees
that (1) it has not offered or sold and will not offer or sell any Notes to
persons in the United Kingdom prior to the expiration of the period of six
months from the issue date of the Notes, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their business or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, (ii) it has complied and will comply with
all applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Notes in, from or otherwise involving the
United Kingdom and (iii) it has only issued or passed on and will only issue or
pass on in the United Kingdom any document received by it in connection with the
issuance of the Notes to a person who is of a kind described in Article 11(3) of
the Financial Services Act of 1986 (Investment Advertisements) (Exemptions)
Order 1996 or is a person to whom the document may otherwise lawfully be issued
or passed on.
(k) Such Initial Purchaser agrees that it will not offer,
sell or deliver any of the Notes in any jurisdiction outside the United States
except under circumstances that will result in compliance with the applicable
laws thereof, and that it will take at its own expense whatever action is
required to permit its purchase and resale of the Notes in such jurisdictions.
Such Initial Purchaser understands that no action has been taken to permit a
public offering in any jurisdiction outside the United States where action would
be required for such purpose.
The Initial Purchasers acknowledge that the Company and, for
purposes of the opinions to be delivered to each Initial Purchaser pursuant to
Section 9 hereof, counsel to the Company and counsel to the Initial Purchasers
will rely upon the accuracy and truth of the foregoing representations and the
Initial Purchasers hereby consent to such reliance.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Initial Purchaser, its directors and officers and each person, if any, who
controls such Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, any legal or
other expenses incurred in connection with investigating or defending any
matter, including any action, that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Offering Memorandum (or any
amendment or supplement thereto), the Preliminary Offering Memorandum or any
Rule 144A Information provided by the Company to any holder or prospective
purchaser of Notes pursuant to Section 5(h) or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to the Initial Purchaser furnished in writing to the Company by such Initial
Purchaser. The Company acknowledges that the statements set forth in (i) the
last paragraph of the cover page, (ii) the first paragraph on page ii, (iii) the
fourth and fifth sentences of the first paragraph under the caption "Risk
Factors--Absence of Existing Market for Notes" and (iv) the entire fourth
paragraph, the second sentence of the fifth paragraph and the entire eleventh
paragraph under the caption "Plan of Distribution" in each case in the
Preliminary Offering Memorandum and the Offering Memorandum constitute the only
such information. The foregoing indemnity shall not inure to the benefit of any
Initial Purchaser on account of any losses, claims, damages, liabilities or
judgments arising from the sale of the Notes by such Initial Purchaser to any
person if a copy of the Offering Memorandum (as supplemented or amended) shall
not have been delivered or sent to such person at or prior to the written
confirmation of the initial resale of such Notes to such person and the untrue
statement or omission contained in such Preliminary Offering Memorandum was
corrected in the Offering Memorandum (as supplemented or amended), provided that
the Company has delivered the Offering Memorandum (as supplemented or amended)
to the Initial Purchasers in requisite quantity on a timely basis to permit such
delivery or sending.
(b) Each Initial Purchaser agrees, severally and not
jointly, to indemnify and hold harmless the Company, and its directors and
officers and each person, if any, who controls (within the meaning of Section 15
of the Act or Section 20 of the Exchange Act) the Company, to the same extent as
the foregoing indemnity from the Company to the Initial Purchasers but only with
reference to information relating to such Initial Purchaser furnished in writing
to the Company by such Initial Purchaser expressly for use in the Preliminary
Offering Memorandum or the Offering Memorandum.
(c) In case any action shall be commenced involving any
person in respect of which indemnity may be sought pursuant to Section 8(a) or
8(b) (the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), the Initial Purchasers shall not
be required to assume the defense of such action pursuant to this Section 8(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of the Initial Purchasers). Any indemnified party shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by DLJ on behalf of the Initial Purchasers,
in the case of the parties indemnified pursuant to Section 8(a), and by the
Company, in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with the written consent of
the indemnifying party or (ii) effected without the written consent of the
indemnifying party if the settlement is entered into more than twenty business
days after the indemnifying party shall have received a request from the
indemnified party for reimbursement for the fees and expenses of counsel (in any
case where such fees and expenses are at the expense of the indemnifying party)
and, prior to the date of such settlement, the indemnifying party shall have
failed to comply with such reimbursement request. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Initial Purchasers on the other hand from the
offering of the Notes or (ii) if the allocation provided by clause 8(d)(i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 8(d)(i) above but
also the relative fault of the Company, on the one hand, and the Initial
Purchasers, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Initial Purchasers, on the
other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Notes (before deducting expenses) received by
the Company, and the total discounts and commissions received by the Initial
Purchasers bear to the total price to investors of the Notes, in each case as
set forth in the table on the cover page of the Offering Memorandum. The
relative fault of the Company, on the one hand, and the Initial Purchasers, on
the other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company, on the one hand, or the Initial Purchasers, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Initial Purchasers agree that it would
not be just and equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
indemnified party in connection with investigating or defending any matter,
including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, the Initial Purchasers shall not be required to contribute any amount
in excess of the amount by which the total discounts and commissions received by
such Initial Purchasers exceeds the amount of any damages which the Initial
Purchasers have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Initial Purchasers' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective
principal amount of Notes purchased by each of the Initial Purchasers hereunder
and not joint.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
9. Conditions of Initial Purchasers' Obligations. The
obligations of the Initial Purchasers to purchase the Notes under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing Date, in
the case of Initial Notes, or on the Option Closing Date, in the case of
Additional Notes, in each case with the same force and effect as if made on and
as of such date.
(b) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any notice have
been given of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or of any potential or intended review) for a possible
change that does not indicate the direction of the possible change in, any
rating of the Company or any securities of the Company (including, without
limitation, the placing of any of the foregoing ratings on credit watch with
negative or developing implications or under review with an uncertain direction)
by any "nationally recognized statistical rating organization" as such term is
defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have
occurred any change, nor shall any notice have been given of any potential or
intended change, in the outlook for any rating of the Company or any securities
of the Company by any such rating organization and (iii) no such rating
organization shall have given notice that it has assigned (or is considering
assigning) a lower rating to the Notes than that on which the Notes were
marketed.
(c) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there shall not have occurred any change or any
development involving a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of the Company
and its subsidiaries, taken as a whole, (ii) there shall not have been any
change or any development involving a prospective change in the capital stock or
in the long-term debt of the Company or any of its subsidiaries and (iii)
neither the Company nor any of its subsidiaries shall have incurred any
liability or obligation, direct or contingent, the effect of which, in any such
case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your reasonable
judgment, is material and adverse and, in your reasonable judgment, makes it
impracticable to market the Notes on the terms and in the manner contemplated in
the Offering Memorandum.
(d) You shall have received on the Closing Date, in the case
of Initial Notes, or on the Option Closing Date, in the case of Additional
Notes, a certificate dated as of such date, signed by the President and the
Chief Financial Officer of the Company, confirming the matters set forth in
Sections 9(a) and 9(b) and stating that the Company has complied in all material
respects with all the agreements and satisfied in all material respects all of
the conditions herein contained and required to be complied with or satisfied on
or prior to the Closing Date or the Option Closing Date, as the case may be.
(e) You shall have received on the Closing Date, in the case
of Initial Notes, and on the Option Closing Date, in the case of Additional
Notes, an opinion (satisfactory to you and counsel for the Initial Purchasers),
dated as of such date, of Xxxxxxx Xxxx & Xxxxxxxxx, counsel for the Company, to
the effect that:
(i) the Company has been duly incorporated,
is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as
described in the Offering Memorandum and to own, lease and
operate its properties;
(ii) each of the Company and its Significant
Subsidiaries is duly qualified and is in good standing as a
foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a
Material Adverse Effect;
(iii) all the outstanding shares of capital
stock of the Company have been duly authorized and validly
issued and are fully paid, non-assessable and not subject to
any preemptive or similar rights;
(iv) all of the outstanding shares of
capital stock of each of the Company's Significant
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 any Lien;
(v) this Agreement has been duly authorized,
executed and delivered by the Company;
(vi) the Indenture has been duly authorized,
executed and delivered by the Company and, assuming the due
authorization, valid execution and delivery by the Trustee, is
a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except as (x)
the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally, (y) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of
general applicability and (z) to provisions relating to
indemnities or contribution, as to each of which such counsel
need express no opinion;
(vii) the Notes have been duly authorized
and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the Initial Purchasers in accordance with the terms of this
Agreement and the Indenture, will be entitled to the benefits
of the Indenture and will be valid and binding obligations of
the Company, enforceable against the Company in accordance
with their terms except as (x) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (y) rights of acceleration and
the availability of equitable remedies may be limited by
equitable principles of general applicability, as to each of
which such counsel need express no opinion;
(viii) the Registration Rights Agreement has
been duly authorized, executed and delivered by the Company
and, assuming the due authorization, valid execution and
delivery by each of the Initial Purchasers, is a valid and
binding agreement of the Company, enforceable against the
Company in accordance with its terms except as (x) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally, (y) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of
general applicability and (z) to provisions relating to
indemnities or contribution, as to each of which such counsel
need express no opinion;
(ix) the shares of Common Stock initially
issuable upon conversion of the Notes in accordance with the
Indenture have been duly authorized and reserved for issuance
upon such conversion and, when issued upon such conversion,
will be validly issued by the Company, fully paid and
nonassessable; and the stockholders of the Company have no
preemptive rights under the Company's certificate of
incorporation with respect to the Notes or the shares of
Common Stock issuable upon conversion of the Notes;
(x) the statements under the captions
"Description of Credit Facility" and "Description of Notes" in
the Offering Memorandum, insofar as such statements constitute
a summary of the legal matters, documents or proceedings
referred to therein, fairly present in all material respects
such legal matters, documents and proceedings;
(xi) the execution, delivery and performance
of this Agreement and the other Operative Documents by the
Company, the compliance by the Company with all provisions
hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any
consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency
(except such as may be required under the securities or Blue
Sky laws of the various states and, with respect to the
Registration Statement, as required under the Act, the
Exchange Act and the TIA), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default
under, (a) the charter or by-laws of the Company or any of its
Significant Subsidiaries or (b) any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or
their respective property is bound, (iii) violate or conflict
with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or
agency having jurisdiction over the Company, any of its
Significant Subsidiaries or their respective property, or (iv)
result in the imposition or creation of (or the obligation to
create or impose) a Lien under, any agreement or instrument to
which the Company or any of its Significant Subsidiaries is a
party or by which the Company or any of its Significant
Subsidiaries or their respective property is bound, except,
with respect to clauses (i), (ii) (b), (iii) and (iv), as
would not result in a Material Adverse Effect;
(xii) to the best of such counsel's
knowledge, neither the Company nor any of its Significant
Subsidiaries is in violation of its respective charter or
by-laws;
(xiii) such counsel does not know of any
legal or governmental proceedings pending or threatened to
which the Company or any of its Significant Subsidiaries is or
could be a party or to which any of their respective property
is or could be subject, which is reasonably likely to result,
singly or in the aggregate, in a Material Adverse Effect;
(xiv) the Company is not and, after giving
effect to the offering and sale of the Notes and the
application of the net proceeds thereof as described in the
Offering Memorandum, will not be, an "investment company" as
such term is defined in the Investment Company Act of 1940, as
amended;
(xv) to the best of such counsel's knowledge
except as disclosed in the Offering Memorandum, there are no
contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company or to require the
Company to include such securities with the Notes registered
pursuant to any Registration Statement;
(xvi) the Indenture complies as to form in
all material respects with the requirements of the TIA, and
the rules and regulations of the Commission applicable to an
indenture which is qualified thereunder except that the
Indenture will not be so qualified. It is not necessary in
connection with the offer, sale and delivery of the Notes to
the Initial Purchasers in the manner contemplated by this
Agreement or in connection with the Exempt Resales to qualify
the Indenture under the TIA;
(xvii) no registration under the Act of the
Notes is required for the sale of the Notes to the Initial
Purchasers as contemplated by this Agreement or for the Exempt
Resales assuming that (i) each Initial Purchaser is a QIB, an
Accredited Institution or a Regulation S Purchaser, (ii) the
accuracy of, and compliance with, the Initial Purchasers'
representations and agreements contained in Section 7 of this
Agreement, (iii) the compliance with, and accuracy of, the
agreements and representations of the Company set forth in
Sections 5(h) and (m) and 6(ee), (ff), (gg), (hh), (ii), (jj)
and (kk) of this Agreement and (iv) with respect to Accredited
Institutions, the accuracy of the representations made by each
such Accredited Institution as set forth in the letter of
representation executed by such Accredited Institution in the
form of Annex A to the Offering Memorandum.
In addition, such counsel shall state that they have
participated in conferences with officers and other representatives of the
Company, representatives of the independent certified public accountants of the
Company and the Initial Purchasers at which the contents of the Preliminary
Offering Memorandum and the Offering Memorandum and any amendment thereof or
supplement thereto and related matters were discussed and, although such counsel
has not undertaken to investigate or verify independently, and does not assume
any responsibility for, the accuracy, completeness or fairness of the statements
contained in the Preliminary Offering Memorandum and the Offering Memorandum or
any amendment thereof or supplement thereto, on the basis of the foregoing
(relying as to materiality to the extent such counsel has deemed appropriate
upon the opinions of officers and other representatives of the Company), no
facts have come to the attention of such counsel that would lead them to believe
that the Offering Memorandum as of its date or as of the date hereof, contained
or contains any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that in each such case such counsel expresses no
belief or opinion with respect to the financial statements and schedules and
other financial or statistical data included therein).
The opinion of Xxxxxxx Xxxx & Xxxxxxxxx described in Section
9(e) above shall be rendered to you at the request of the Company and shall so
state therein.
(f) The Initial Purchasers shall have received on the
Closing Date, in the case of Initial Notes, or on the Option Closing Date, in
the case of Additional Notes, an opinion, dated as of such date, of Xxxxxx &
Xxxxxxx, counsel for the Initial Purchasers, in form and substance reasonably
satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received, at the time
this Agreement is executed and at the Closing Date and Option Closing Date,
letters dated the date hereof, the Closing Date or the Option Closing Date, as
the case may be, in form and substance satisfactory to the Initial Purchasers
from Deloitte & Touche LLP, independent public accountants, containing the
information and statements of the type ordinarily included in accountants'
"comfort letters" to the Initial Purchasers with respect to the financial
statements and certain financial information contained in the Offering
Memorandum.
(h) The Notes shall have been approved by the NASD for
trading and duly listed in PORTAL.
(i) The Initial Purchasers shall have received a
counterpart, conformed as executed, of the Indenture which shall have been
entered into by the Company and the Trustee.
(j) The Company shall have executed the Registration Rights
Agreement and the Initial Purchasers shall have received an original copy
thereof, duly executed by the Company.
(k) The Company shall have received from BankBoston, N.A.,
and from each lender under the Company's Fourth Amended and Restated Loan
Agreement dated as of June 30, 1997, an irrevocable consent to the offering of
the Notes and shall deliver a copy of such consent to the Initial Purchasers.
(l) The Company shall not have failed at or prior to the
Closing Date, in the case of Initial Notes, or at or prior to the Option Closing
Date, in the case of Additional Notes, to perform or comply in any material
respect with any of the agreements herein contained and required to be performed
or complied with by the Company at or prior to the Closing Date or the Option
Closing Date, as the case may be.
10. Effectiveness of Agreement and Termination. This
Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto.
This Agreement may be terminated at any time on or prior to
the Closing Date by the Initial Purchasers by written notice to the Company if
any of the following has occurred: (i) any outbreak or escalation of hostilities
or other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States or elsewhere that,
in the Initial Purchasers' judgment, is material and adverse and, in the Initial
Purchasers' judgment, makes it impracticable to market the Notes on the terms
and in the manner contemplated in the Offering Memorandum, (ii) the suspension
or material limitation of trading in securities or other instruments on the New
York Stock Exchange, the American Stock Exchange, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the
Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date any one or more of the Initial
Purchasers shall fail or refuse to purchase the Notes which it or they have
agreed to purchase hereunder on such date and the aggregate principal amount of
the Notes which such defaulting Initial Purchaser or Initial Purchasers, as the
case may be, agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of the Notes to be purchased on such date by
all Initial Purchasers, each non-defaulting Initial Purchaser shall be obligated
severally, in the proportion which the principal amount of the Notes set forth
opposite its name in Schedule B bears to the aggregate principal amount of the
Notes which all the non-defaulting Initial Purchasers, as the case may be, have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Notes which such defaulting Initial Purchaser or Initial Purchasers, as the
case may be, agreed but failed or refused to purchase on such date; provided
that in no event shall the aggregate principal amount of the Notes which any
Initial Purchaser has agreed to purchase pursuant to Section 2 hereof be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of the Notes without the written consent of such Initial
Purchaser. If on the Closing Date any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase the Notes and the aggregate principal amount of
the Notes with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of the Notes to be purchased by all Initial
Purchasers and arrangements satisfactory to the Initial Purchasers and the
Company for purchase of such the Notes are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Initial Purchaser and the Company. In any such case which does
not result in termination of this Agreement, either you 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 Offering
Memorandum or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Initial Purchaser
from liability in respect of any default of any such Initial Purchaser under
this Agreement.
11. Miscellaneous. Notices given pursuant to any provision
of this Agreement shall be addressed as follows: (i) if to the Company, to Fine
Host Corporation, 0 Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000,
Attention: General Counsel and (ii) if to the Initial Purchasers, Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Syndicate Department, or in any case to such other address as
the person to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company and the Initial
Purchasers set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Notes, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of the Initial Purchasers, the officers or
directors of the Initial Purchasers, any person controlling the Initial
Purchasers, the Company, the officers or directors of the Company, or any person
controlling the Company, (ii) acceptance of the Notes and payment for them
hereunder and (iii) termination of this Agreement.
If for any reason the Notes are not delivered by or on behalf
of the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 10 or any material breach by an Initial
Purchaser not otherwise cured pursuant to Section 10), the Company agrees to
reimburse the Initial Purchasers for all out-of-pocket expenses incurred by
them. Notwithstanding any termination of this Agreement, the Company shall be
liable for all expenses which it has agreed to pay pursuant to Section 5(i)
hereof. The Company also agrees to reimburse the Initial Purchasers and its
officers, directors and each person, if any, who controls any Initial Purchaser
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
for any and all fees and expenses (including without limitation the fees and
expenses of counsel) incurred by them in connection with enforcing their rights
under this Agreement (including without limitation its rights under this Section
11).
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Initial Purchasers, the Initial Purchasers' directors and officers, any
controlling persons referred to herein, the directors of the Company and their
respective successors and assigns, all as and to the extent provided in this
Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include a
purchaser of any of the Notes from the Initial Purchasers merely because of such
purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the Initial Purchasers.
Very truly yours,
Fine Host Corporation
By:__________________________
Name:
Title:
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
By:__________________________
Name:
Title:
NationsBanc Xxxxxxxxxx
Securities, Inc.
By:__________________________
Name:
Title:
Xxxxx Xxxxxx Inc.
By:__________________________
Name:
Title:
Xxxxx Xxxxxxx Inc.
By:__________________________
Name:
Title:
S-2
SCHEDULE A
Principal Amount
Initial Purchaser ..................... of Notes
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation ............ $ 43,750,000
NationsBanc Xxxxxxxxxx Securities, Inc. $ 43,750,000
Xxxxx Xxxxxx Inc. ..................... $ 43,750,000
Xxxxx Xxxxxxx Inc. .................... $ 43,750,000
-----------
Total ........................ $175,000,000
===========
SCHEDULE B
Significant Subsidiaries
1. Best, Inc.
EXHIBIT A
Form of Registration Rights Agreement
