DRAFT OF MAY 31, 1996
4,000,000 Shares
Greenwich Air Services, Inc.
Class B Common Stock
UNDERWRITING AGREEMENT
, 1996
Oppenheimer & Co., Inc.
Alex. Brown & Sons Incorporated
Dillon, Read & Co. Inc.
c/o Oppenheimer & Co., Inc.
Oppenheimer Tower
World Financial Center
New York, New York 10281
On behalf of the Several
Underwriters named in
Schedule I attached hereto.
Gentlemen:
Greenwich Air Services, Inc., a Delaware corporation (the "Company"),
and Eugene P. Conese, the selling stockholder (the "Selling Stockholder"),
propose to sell to you and the other underwriters named in Schedule I to this
Agreement (the "Underwriters"), for whom you are acting as Representatives, an
aggregate of 4,000,000 shares (the "Firm Shares") of the Company's Class B
common stock, $0.01 par value (the "Common Stock"), of which 3,400,000 shares
are to be issued and sold by the Company and 600,000 shares are to be sold by
the Selling Stockholder. In addition, the Company proposes to grant to the
Underwriters an option to purchase up to an additional aggregate of 600,000
shares (the "Option Shares") of Common Stock from the Company for the purpose of
covering over-allotments in connection with the sale of the Firm Shares. The
Firm Shares and the Option Shares are together called the "Shares."
The Shares are being issued and sold in connection with (i) the
acquisition by the Company through a wholly-owned subsidiary (the "Aviall
Acquisition") of the gas turbine engine services and engine components repair
business (the "Aviall Business") of Aviall, Inc. and Aviall Services, Inc.
("Aviall")
pursuant to a purchase and sale agreement dated April 19, 1996 between GASI
Engine Services Corporation, the Company and Aviall (the "Purchase Agreement");
(ii) the refinancing by the Company of substantially all of its indebtedness
under its existing credit facility with The Bank of New York Commercial
Corporation (the "Refinancing") through a $175 million senior secured revolving
credit facility dated ___________, 1996 between the Company and The Bank of New
York Commercial Corporation, individually and as agent for the other lenders
(the "New Credit Facility") and (iii) the offering (the "Note Offering")
pursuant to an underwriting agreement dated ____, 1996 among the Company, the
Subsidiary Guarantors named therein and the Underwriters named therein (the
"Note Underwriting Agreement") of $150,000,000 aggregate principal amount of __%
Senior Notes of the Company due 2006 (the "Notes") to be issued under an
indenture (the "Indenture") to be dated ____________ 1996 among the Company, the
Subsidiary Guarantors (as defined therein) and American Stock Transfer & Trust
Company, as Trustee. The Aviall Acquisition, the Refinancing and the Note
Offering are referred to herein as the "Transactions" and the Purchase
Agreement, the New Credit Facility, the Note Underwriting Agreement and the
Indenture are referred to herein as the "Transaction Documents."
It is understood and agreed that prior to or concurrently with the
Firm Shares Closing Date (as defined in Section 2 hereof) the Company will
consummate the Transactions. For the purposes of this Agreement, at the Closing
Date the term the "Company" shall mean the Company as it would exist immediately
following the Aviall Acquisition.
1. SALE AND PURCHASE OF THE SHARES. On the basis of the
representations, warranties and agreements contained in, and subject to the
terms and conditions of, this Agreement:
(a) The Company and the Selling Stockholder agree, severally and not
jointly, to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company and the
Selling Stockholder, at $ per share (the "Initial Price"), the number
of Firm Shares (adjusted by the Representatives to eliminate fractions)
which bears the same proportion to the total number of Firm Shares to be
sold by the Company or by the Selling Stockholder, as the case may be, as
the number of Firm Shares set forth opposite the name of such Underwriter
in Schedule I to this Agreement bears to the total number of Firm Shares to
be sold by the Company and the Selling Stockholder.
(b) The Company grants to the several Underwriters an option to
purchase, severally and not jointly, all or any part of the Option Shares
at the Initial Price; such option to be exercisable upon the terms and
conditions set forth
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herein. The number of Option Shares to be purchased by each Underwriter
shall be the same percentage (adjusted by the Representatives to eliminate
fractions) of the total number of Option Shares to be purchased by the
Underwriters as such Underwriter is purchasing of the Firm Shares. Such
option may be exercised only to cover over-allotments in the sales of the
Firm Shares by the Underwriters and may be exercised in whole or in part at
any time on or before 12:00 noon, New York City time, on the business day
before the Firm Shares Closing Date (as defined below), and only once
thereafter within 30 days after the date of this Agreement, in each case
upon written or telegraphic notice, or verbal or telephonic notice
confirmed by written or telegraphic notice, by the Representatives to the
Company no later than 12:00 noon, New York City time, on the business day
before the Firm Shares Closing Date or at least two business days before
the Option Shares Closing Date (as defined below), as the case may be,
setting forth the number of Option Shares to be purchased and the time and
date (if other than the Firm Shares Closing Date) of such purchase.
2. DELIVERY AND PAYMENT. Delivery by the Company and the Selling
Stockholder of the Firm Shares to the Representatives for the respective
accounts of the Underwriters, and payment of the purchase price by certified or
official bank check or checks payable in New York Clearing House (next day)
funds to the Company and the Selling Stockholder, shall take place at the
offices of Oppenheimer & Co., Inc., at Oppenheimer Tower, World Financial
Center, New York, New York 10281, at 10:00 a.m., New York City time, on the
third business day following the date of this Agreement, provided, however, that
if the Firm Shares sold hereunder are priced after 4:30 p.m., New York time, on
any business day, payment and delivery in respect of the Firm Shares shall take
place on the fourth business day following the date of this Agreement; if it is
determined that settlement within the foregoing time frame is not feasible, then
payment and delivery in respect of the Firm Shares shall occur at such time on
such other date, not later than 10 business days after the date of this
Agreement, as shall be agreed upon by the Company and the Representatives (such
time and date of delivery and payment are called the "Firm Shares Closing
Date").
In the event the option with respect to the Option Shares is
exercised, delivery by the Company of the Option Shares to the Representatives
for the respective accounts of the Underwriters and payment of the purchase
price by certified or official bank check or checks payable in New York Clearing
House (next day) funds to the Company shall take place at the offices of
Oppenheimer & Co., Inc. specified above at the time and on the date (which may
be the same date as, but in no event shall be earlier than, the Firm Shares
Closing Date) specified in the notice referred to in Section 1(b) (such time and
date of
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delivery and payment are called the "Option Shares Closing Date"). The Firm
Shares Closing Date and the Option Shares Closing Date are called, individually,
a "Closing Date" and, together, the "Closing Dates." At the option of the
Company, payment of the purchase price for any Shares being issued and sold by
the Company hereunder on any Closing Date shall be by wire transfer of same day
(Federal) funds; provided, however, that such option may be exercised only by
written notice to the Representatives no later than two business days prior to
such Closing Date and the Company shall reimburse the Representatives for their
overnight funding costs at or prior to such Closing Date.
Certificates evidencing the Shares shall be registered in such names
and shall be in such denominations as the Representatives shall request at least
two full business days before the Firm Shares Closing Date or, in the case of
Option Shares, on the day of notice of exercise of the option as described in
Section l(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, at least one
full business day before the Firm Shares Closing Date (or the Option Shares
Closing Date in the case of the Option Shares).
3. REGISTRATION STATEMENT AND PROSPECTUS; PUBLIC OFFERING. The
Company has prepared in conformity with the requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and the published rules and
regulations thereunder (the "Rules") adopted by the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (No. 333-
4162), including a preliminary prospectus relating to the Shares, and has filed
with the Commission the Registration Statement and such amendments thereto as
may have been required to the date of this Agreement. Copies of such
Registration Statement (including all amendments thereto) and of the related
preliminary prospectus have heretofore been delivered by the Company to you.
The term "Registration Statement" means the Registration Statement as amended at
the time and on the date it becomes effective (the "Effective Date"), including
all exhibits and information, if any, deemed to be part of the Registration
Statement pursuant to Rule 424(a) and Rule 430A of the Rules. The term
"preliminary prospectus" means any preliminary prospectus (as described in Rule
430 of the Rules) included at any time as a part of the Registration Statement.
The term "Prospectus" means the prospectus in the form first used to confirm
sales of the Shares (whether such prospectus was included in the Registration
Statement at the time of effectiveness or was subsequently filed with the
Commission pursuant to Rule 424(b) of the Rules).
The Company and the Selling Stockholder understand that the
Underwriters propose to make a public offering of the Shares,
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as set forth in and pursuant to the Prospectus, as soon after the Effective Date
and the date of this Agreement as the Representatives deem advisable. The
Company and the Selling Stockholder hereby confirm that the Underwriters and
dealers have been authorized to distribute or cause to be distributed each
preliminary prospectus (except for the preliminary prospectus included in the
initial filing of the Registration Statement on April 26, 1996) and are
authorized to distribute the Prospectus (as from time to time amended or
supplemented if the Company furnishes amendments or supplements thereto to the
Underwriters).
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDER. (A) The Company hereby represents and warrants to each Underwriter
as follows:
(a) On the Effective Date, the Registration Statement complied, and,
on the date of the Prospectus, on the date any post-effective amendment to
the Registration Statement shall become effective, on the date any
supplement or amendment to the Prospectus is filed with the Commission and
on each Closing Date, the Registration Statement and the Prospectus (and
any amendment thereof or supplement thereto) will comply, in all material
respects, with the applicable provisions of the Securities Act and the
Rules and the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the rules and regulations of the Commission thereunder; the
Registration Statement did not, as of the Effective Date, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and on the other dates referred to above neither
the Registration Statement nor any amendment thereof or supplement thereto
will contain any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and on the other dates referred
to above neither the Prospectus nor any amendment thereof or supplement
thereto will contain any untrue statement of a material fact or will omit
to state any material fact required to be stated therein, in the light of
the circumstances under which they were made, not misleading. When any
related preliminary prospectus was first filed with the Commission (whether
filed as part of the Registration Statement or any amendment thereto or
pursuant to Rule 424(a) of the Rules) and when any amendment thereof or
supplement thereto was first filed with the Commission, such preliminary
prospectus as amended or supplemented as of its date complied in all
material respects with the applicable provisions of the Securities Act and
the Rules and did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
in order to make
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the statements therein not misleading. The Company and the Selling
Stockholder make no representation or warranty as to the paragraph with
respect to stabilization on the inside front cover page of the Prospectus
and the statements contained under the caption "Underwriting" in the
Prospectus. The Company and the Selling Stockholder acknowledge that such
statements constitute the only information furnished in writing by the
Representatives on behalf of the several Underwriters specifically for
inclusion in the Registration Statement, any preliminary prospectus or the
Prospectus.
(b) The financial statements included in the Registration Statement
and the Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods and as of the dates shown, and
such consolidated financial statements have been prepared in conformity
with generally accepted accounting principles in the United States applied
on a consistent basis, except as otherwise stated therein and except for
the unaudited financial statements to the extent such unaudited financial
statements omit certain footnote disclosures and may be subject to year-end
audit adjustment which would not, individually or in the aggregate, be
material. The schedules included in the Registration Statement present
fairly in all material respects the information required to be stated
therein; and the historical financial information and statistical data set
forth in the Prospectus under the captions "Summary Historical and Pro
Forma Financial Data," "Capitalization," "Unaudited Pro Forma Financial
Data," and "Selected Historical Financial Data" are fairly stated in all
material respects in relation to the financial statements from which they
have been derived. The pro forma data included in the Registration
Statement and the Prospectus present fairly the information shown therein,
comply in all material respects with the requirements of the Act and the
Rules and Regulations with respect to pro forma financial statements, have
been properly compiled on the pro forma basis described therein and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein.
(c) Each of Deloitte & Touche LLP, Price Waterhouse LLP and KMPG Peat
Marwick LLP, whose reports are filed with the Commission as a part of the
Registration Statement, are and, during the periods covered by their
reports, were independent public accountants as required by the Securities
Act and the Rules.
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(d) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware. Each
subsidiary of the Company has been duly incorporated or formed and is an
existing corporation in good standing under the laws of the jurisdiction of
its incorporation or organization. The Company and its subsidiaries are
duly qualified and in good standing as a foreign corporation in each
jurisdiction in which the character or location of its assets or properties
(owned, leased or licensed) or the nature of its business makes such
qualification necessary except for such jurisdictions where the failure to
so qualify would not have a material adverse effect on the assets or
properties, business, results of operations or financial condition of the
Company or its subsidiaries, taken as a consolidated whole. The Company
has no subsidiaries other than the Subsidiary Guarantors party to the
Indenture and Greenwich Caledonian, Limited (formerly known as Aviall
Limited and hereinafter "Aviall U.K."), and does not control, directly or
indirectly, any corporation, partnership, joint venture, association or
other business organization. The Company and its subsidiaries have all
requisite power and authority, and all necessary authorizations, approvals,
consents, orders, licenses, certificates and permits of and from all
governmental or regulatory bodies or any other person or entity, to own,
lease and license its assets and properties and conduct its businesses as
now being conducted and as described in the Registration Statement and the
Prospectus, except for such authorizations, approvals, consents, orders,
licenses, certificates or permits which, if not obtained, would not have a
material adverse effect on the Company or its subsidiaries, taken as a
consolidated whole; no such authorization, approval, consent, order,
license, certificate or permit contains a materially burdensome restriction
other than as disclosed in the Registration Statement and the Prospectus;
and the Company has all such corporate power and authority, and such
authorizations, approvals, consents, orders, licenses, certificates and
permits to enter into, deliver and perform this Agreement and to issue and
sell the Shares (except as may be required under the Securities Act and
state and foreign Blue Sky laws).
(e) As of March 31, 1996, the Company had an authorized and
outstanding capital stock as set forth under the caption "Capitalization"
in the Registration Statement and the Prospectus. All of the outstanding
shares of Common Stock have been duly and validly issued and are fully paid
and nonassessable and none of them was issued in violation of any
preemptive or other similar right. The Shares, when issued (in the case of
Shares to be sold by the Company) and sold pursuant to this Agreement, will
be duly and validly
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issued, fully paid and nonassessable and none of them will be issued in
violation of any preemptive or other similar right. Except as disclosed in
the Registration Statement and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance of, and no
commitment, plan or arrangement to issue, any share of stock of the Company
or any security convertible into, or exercisable or exchangeable for, such
stock. The Common Stock and the Shares conform in all material respects to
all statements in relation thereto contained in the Registration Statement
and the Prospectus.
(f) This Agreement has been duly and validly executed and delivered
by the Company and constitutes and will constitute the legal, valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms, except (A) as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles and (B) to the extent that rights to indemnity or
contribution under this Agreement may be limited by Federal and state
securities laws or the public policy underlying such laws.
(g) The Company and each subsidiary have all necessary power and
authority to enter into and consummate the Transactions and execute,
deliver and perform their obligations under the Transaction Documents to
which they are a party; each Transaction Document has been or, by the
Closing Date, will be duly executed and delivered by the Company and each
of its subsidiaries party thereto substantially in the form previously
delivered to you and, when executed and delivered by the Company or such
subsidiary, will constitute legal, valid and binding obligations of the
Company and each such subsidiary enforceable against the Company or such
subsidiary, as the case may be, in accordance with their respective terms,
except (A) as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles and (B) to
the extent that rights to indemnity or contribution under the Note
Underwriting Agreement may be limited by Federal and state securities laws
or the public policy underlying such laws.
(h) Each of the Company and its subsidiaries is not in violation of
any term or provision of its charter or by-laws.
(i) Except to the extent set forth in the Registration Statement and
the Prospectus, the Company has not received any written notice of, nor
does it have any actual knowledge
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of, any failure by it or any of its subsidiaries to be in substantial
compliance with all existing statutes and regulations applicable to it or
such subsidiaries, which failure could materially and adversely affect the
financial condition or business, properties, net worth or results of
operations of the Company and its subsidiaries, taken as a consolidated
whole.
(j) Neither the execution, delivery and performance of this Agreement
and the Transaction Documents by the Company and its subsidiaries party
thereto nor the consummation of any of the transactions contemplated hereby
or thereby (including, without limitation, the issuance and sale by the
Company of the Shares) will give rise to a right to terminate or accelerate
the due date of any payment due under, or conflict with or result in the
breach of any term or provision of, or constitute a default (or an event
which with notice or lapse of time or both would constitute a default)
under, or require any consent or waiver under, or result in the execution
or imposition of any lien, charge or encumbrance upon any properties or
assets of the Company and its subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust or other material agreement or
instrument to which the Company or of its subsidiaries is a party or by
which it or any of its properties or businesses is bound, any term or
provision of its charter or by-laws or any franchise, license, permit,
judgment, decree, order, statute, rule or regulation, in any such case
where termination, acceleration, conflict, breach, default, event of
default, lien, charge, encumbrance, whether or not asserted or imposed,
would have a material adverse effect on the assets or properties, business,
results of operations, prospects or condition (financial or otherwise) of
the Company and its subsidiaries, taken as a consolidated whole.
(k) Except as disclosed in the Registration Statement and the
Prospectus, the Company and its subsidiaries have good and marketable title
to all real properties and all other material properties and assets owned
by them, in each case free from liens, encumbrances and defects that could
materially affect the value thereof or materially interfere with the use
made or presently contemplated to be made thereof by them; and except as
disclosed in the Registration Statement and the Prospectus, the Company and
its subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that are material or could materially
interfere with the use made or presently contemplated to be made thereof by
them.
(l) Except as disclosed in the Registration Statement and the
Prospectus, there are no pending actions, suits or proceedings
(governmental or otherwise) against or affecting
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the Company, any of its subsidiaries or any of their respective properties
that, if determined adversely to the Company or any of its subsidiaries,
could individually or in the aggregate have a material adverse effect on
the financial condition or business, properties, net worth or results of
operations of the Company and its subsidiaries taken as a consolidated
whole, or would materially and adversely affect the ability of the Company
or any of its subsidiaries to perform their respective obligations under
this Agreement, or which are otherwise material in the context of the sale
of the Shares; and, to the Company's knowledge, no such actions, suits or
proceedings are threatened.
(m) Except as disclosed in the Registration Statement and the
Prospectus, the Company is not involved in any labor dispute nor, to the
knowledge of the Company, is any such dispute threatened, which dispute
would have a material adverse effect on the assets or any real property of
the Company or its subsidiaries ("Property" or "Properties"), business,
results of operations or financial condition of the Company and its
subsidiaries, taken as a consolidated whole.
(n) Except as disclosed in the Registration Statement and the
Prospectus, the Company owns or possesses adequate and enforceable rights
to use all patents, patent applications, trademarks, trademark
applications, trade names, service marks, copyrights, copyright
applications, licenses, know-how and other similar rights and proprietary
knowledge (collectively, "Intangibles") materially necessary for the
conduct of its business as described in the Registration Statement and the
Prospectus. The Company has not received any notice of, or to its best
knowledge is not aware of, any infringement of or conflict with asserted
rights of others with respect to any Intangibles which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect upon the assets or properties,
business, results of operations, prospects or condition (financial or
otherwise) of the Company and its subsidiaries, taken as a consolidated
whole.
(o) There is no document or contract of a character required to be
described in the Registration Statement or Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required by the Securities Act and the Rules. Each agreement listed in the
Exhibits to the Registration Statement is in full force and effect and is
valid and enforceable by and against the Company and each of its
subsidiaries party thereto in accordance with its terms, assuming the due
authorization,
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execution and delivery thereof by each of the other parties thereto, except
where the failure to be in full force and effect or valid and enforceable
in accordance with its terms does not materially adversely affect the
assets or properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company and its subsidiaries,
taken as a consolidated whole. Neither the Company, nor to the best of the
Company's knowledge, any other party is in default in the observance or
performance of any material term or obligation to be performed by it under
any such agreement, and no event has occurred which with notice or lapse of
time or both would constitute such a default, in any such case which
default or event would have a material adverse effect on the assets or
properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company and its subsidiaries, taken as a
consolidated whole. No default exists, and no event has occurred which
with notice or lapse of time or both would constitute a default, in the due
performance and observance of any term, covenant or condition, by the
Company and its subsidiaries, of any other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which it or its
subsidiaries' properties or business may be bound or affected which default
or event would have a material adverse effect on the assets or properties,
business, results of operations, prospects or condition (financial or
otherwise) of the Company and its subsidiaries, taken as a consolidated
whole.
(p) Subject to the disclosure set forth in the Registration Statement
and Prospectus under the heading "Business--Environmental Matters," to the
best knowledge of the Company, the Company's operations and facilities are
in material compliance with all federal, state and local environmental laws
and regulations. To the best knowledge of the Company, the disclosure set
forth in the Registration Statement and the Prospectus under the heading
"Business--Environmental Matters" is true, complete and correct in all
material respects.
(q) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement. The
Company has obtained from all executive officers and directors and
principal stockholders (as set forth in the Prospectus) of the Company, and
delivered to the Representatives, their enforceable written agreement that
for a period of at least 90 days from the date of this Agreement they will
not, without the prior written consent of the Representatives, offer for
sale, sell, solicit on offer to buy, contract to sell, distribute, grant
any option for the sale of, or otherwise transfer or dispose of, directly
or indirectly, any shares of Common
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Stock (or any securities convertible into, exercised for, or exchangable
for any shares of Common Stock).
(r) No transaction has occurred between or among the Company and any
of its officers or directors or any affiliate or affiliates of any such
officer or director that is required to be described in and is not
described in the Registration Statement and the Prospectus.
(s) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of any of the Shares.
(t) The Company has filed all Federal, state, local and foreign tax
returns which are required to be filed through the date hereof, or has
received extensions thereof, and has paid all taxes shown on such returns
and all assessments received by it, to the extent that the same are
material and have become due, except where the failure to so file or so pay
could not have a material adverse effect on the financial condition or
business, properties, net worth or results of operations of the Company and
its subsidiaries, taken as a consolidated whole.
(u) The Shares have been approved for quotation on the National
Association of Securities Dealers Automated Quotation ("Nasdaq") National
Market, subject to official notice of issuance.
(v) The Company has complied with all of the requirements and filed
the required forms as specified in Florida Statutes Section 517.075.
(w) To the best knowledge of the Company the disclosure set forth in
the Registration Statement and the Prospectus under the heading "Risk
Factors - Product Liability Risks" is true, complete and correct in all
material respects; neither the Company nor any of its subsidiaries has any
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a
cost that would not materially and adversely affect the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Company and its subsidiaries, except as described in or
contemplated by the Prospectus.
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(x) The Company will apply the net proceeds from the sale of its
Shares substantially in accordance with the description set forth in the
Prospectus and any Preliminary Prospectus under the heading "Use of
Proceeds."
(y) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as described
therein, (a) there has not been any material adverse change in the assets
or properties, business, results of operations, prospects or condition
(financial or otherwise), of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business; (b) the Company and its subsidiaries have not sustained any loss
or interference which would have a material adverse effect on its assets,
businesses or properties (whether owned or leased) from fire, explosion,
earthquake, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or any court or legislative or other governmental
action, order or decree; and (c) and since the date of the latest balance
sheet included in the Registration Statement and the Prospectus, except as
reflected therein, the Company has not (1) issued any securities or
incurred any liability or obligation, direct or contingent, for borrowed
money, except for securities issued upon conversion or exercise of
convertible debentures, warrants or stock options outstanding on the date
of the Registration Statement and the Prospectus and disclosed therein and
liabilities or obligations incurred in the ordinary course of business, (2)
entered into any transaction not in the ordinary course of business or (3)
declared or paid any dividend or made any distribution on any shares of its
stock or redeemed, purchased or otherwise acquired or agreed to redeem,
purchase or otherwise acquire any shares of its stock.
(B) The Selling Stockholder represents and warrants to each Underwriter
that:
(a) This Agreement has been duly and validly executed and delivered
by the Selling Stockholder and constitutes and will constitute the legal,
valid and binding obligation of the Selling Stockholder, enforceable
against the Selling Stockholder in accordance with its terms, except (i) as
the enforceability hereof and thereof may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles and (ii) to
the extent that rights to indemnity or contribution under this Agreement
may be limited by federal and state securities laws or the public policy
underlying such laws.
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(b) The Selling Stockholder has good, valid and marketable title to
the Shares to be sold by him pursuant to this Agreement, free and clear of
all liens, encumbrances, security interests, restrictions or claims
whatsoever, with the legal right and full power to enter into this
Agreement and to sell, transfer and deliver such Shares hereunder and, upon
the delivery of and payment for such Shares as contemplated hereby, the
Selling Stockholder will convey to the Underwriters good, valid and
marketable title to the Shares being sold by such Selling Stockholder, free
and clear of all liens, encumbrances, security interests, restrictions or
claims whatsoever.
(c) All information with respect to the Selling Stockholder furnished
by or on behalf of the Selling Stockholder for use in connection with the
preparation of the Registration Statement and Prospectus is true and
correct in all material respects and does not omit to state any material
fact necessary to make such information not misleading.
(d) No transaction has occurred between the Selling Stockholder and
the Company or any of its subsidiaries that is required to be described in
and is not described in the Registration Statement and the Prospectus.
(e) The Selling Stockholder has not taken and will not take, directly
or indirectly, any action designed to or which might reasonably be expected
to cause or result in, or which has constituted or which will reasonably be
expected to constitute, stabilization or manipulation of the price of the
Common Stock to facilitate the sale or resale of any of the Shares.
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each of
the following terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 6(A)(a).
(b) No order preventing or suspending the use of any preliminary
prospectus or the Prospectus shall have been or shall be in effect and no
order suspending the effectiveness of the Registration Statement shall be
in effect and no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional information
on the part of the Commission (to be included in the Registration Statement
or the Prospectus or
- 14 -
otherwise) shall have been complied with to the satisfaction of the
Representatives.
(c) The representations and warranties of the Company and the Selling
Stockholder contained in this Agreement and in the certificates delivered
pursuant to Section 5(d) and 5(e) shall be true and correct when made and
on and as of each Closing Date as if made on such date and the Company and
the Selling Stockholder shall have performed all covenants and agreements
and satisfied all the conditions contained in this Agreement required to be
performed or satisfied by it or them at or before such Closing Date.
(d) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives and dated such Closing Date,
of the chief executive or chief operating officer and the chief financial
officer or chief accounting officer of the Company, to the effect that,
acting solely in their capacities as executive officers of the Company and
not individually, the signers of such certificate have carefully examined
the Registration Statement, the Prospectus and this Agreement and that the
representations and warranties of the Company in this Agreement are true
and correct on and as of such Closing Date with the same effect as if made
on such Closing Date and the Company has performed all covenants and
agreements and satisfied all conditions contained in this Agreement
required to be performed or satisfied by it at or prior to such Closing
Date.
(e) The Representatives shall have received on such Closing Date a
certificate, addressed to the Representatives and dated such Closing Date,
of the Selling Stockholder to the effect that such Selling Stockholder has
carefully examined the Registration Statement, the Prospectus and this
Agreement and that the representations and warranties of such Selling
Stockholder in this Agreement are true and correct on and as of such
Closing Date with the same effect as if made on such Closing Date and such
Selling Stockholder has performed all covenants and agreements and
satisfied all conditions contained in this Agreement required to be
performed or satisfied by such Selling Stockholder at or prior to such
Closing Date.
(f) At the Execution Time and at the Closing Date, Deloitte & Touche
LLP shall have furnished to the Representatives a letter or letters, dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance reasonably satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the Act and the
applicable
- 15 -
published rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules and pro forma financial statements
included in the Registration Statement and the Prospectus and reported
on by them comply in form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; their limited review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited interim financial information for the six month
period ended March 31, 1996 and as at March 31, 1996, as indicated in
their report dated March 31, 1996; carrying out certain specified
procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the stockholders,
directors and finance and audit committees of the Company and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to September 30,
1995, nothing came to their attention which caused them to believe
that:
(A) any unaudited financial statements included in the
Registration Statement and the Prospectus do not comply in form
in all material respects with applicable accounting requirements
of the Act and with the published rules and regulations of the
Commission with respect to registration statements on Form S-1;
and said unaudited financial statements are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included in the Registration Statement and the
Prospectus; or
(B) with respect to the period subsequent to March 31,
1996, there were any changes, at a specified date not more than
five business days prior to the date of the letter, in the long
term debt of the Company and its subsidiaries or
- 16 -
capital stock of the Company or decreases in the stockholders'
equity of the Company as compared with the amounts shown on the
March 31, 1996 consolidated balance sheet included in the
Registration Statement and the Prospectus, or for the period from
April 1, 1996 to such specified date there were any decreases, as
compared with the corresponding period in the preceding fiscal
year, in net sales, gross profit, income from operations, or in
total or per share net income of the Company and its
subsidiaries, except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which
is limited to accounting, financial or statistical information derived
from the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the
Prospectus and in Exhibits 11 and 12 to the Registration Statement,
including the information set forth under the captions "Summary
Historical and Pro Forma Financial Data," "Capitalization," "Unaudited
Pro Forma Combined Financial Information," "Selected Historical
Financial Data" and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" in the Prospectus, agrees with
the accounting records of the Company and its subsidiaries, excluding
any questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited pro forma
financial statements included in the Registration Statement and the
Prospectus (the "pro forma financial statements"); carrying out
certain specified procedures; inquiries of certain officials of the
Company and Aviall who have responsibility for financial and
accounting matters; and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts in
the pro forma financial statements, nothing came to their attention
which caused them to believe that the pro forma financial statements
do not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the
pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
- 17 -
References to the Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
(g) At the Execution Time and at the Closing Date, Price Waterhouse
LLP shall have furnished to the Representatives a letter or letters, dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance reasonably satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the Act and the
applicable published rules and regulations thereunder and stating in effect
that:
(i) in their opinion the audited financial statements and
financial statement schedules included in the Registration Statement
and the Prospectus and reported on by them comply in form in all
material respects with the applicable accounting requirements of the
Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Aviall Business; their
limited review in accordance with standards established by the
American Institute of Certified Public Accountants of the unaudited
interim financial information for the three month period ended March
31, 1996 and as at March 31, 1996, as indicated in their report dated
March 31, 1996; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; and inquiries of
certain officials of the Aviall Business who have responsibility for
financial and accounting matters of the Aviall Business and its
subsidiaries as to transactions and events subsequent to December 31,
1995, nothing came to their attention which caused them to believe
that:
(A) any unaudited financial statements of the Aviall
Business included in the Registration Statement and the
Prospectus do not comply in form in all material respects with
applicable accounting requirements of the Act and with the
published rules and regulations of the Commission with respect to
registration statements on Form S-1; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited
- 18 -
financial statements included in the Registration Statement and
the Prospectus; or
(B) with respect to the period subsequent to March 31,
1996, there were any changes, at a specified date not more than
five business days prior to the date of the letter, in the total
debt of the Aviall Business and its subsidiaries or decreases in
the Aviall investment of the Aviall Business or total assets of
the Aviall Business as compared with the amounts shown on the
March 31, 1996 consolidated balance sheet included in the
Registration Statement and the Prospectus, or for the period from
April 1, 1996 to such specified date there were any decreases, as
compared with the corresponding period in the preceding fiscal
year, in net sales, gross profits or in earnings (loss) of the
Aviall Business and its subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as
to the significance thereof unless said explanation is not deemed
necessary by the Representatives; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus agrees with the
accounting records of the Aviall Business, excluding any questions of
legal interpretation.
References to the Prospectus in this paragraph (g) include any
supplement thereto at the date of the letter.
(h) At the Execution Time, KPMG Peat Marwick LLP shall have furnished
to the Representatives a letter or letters, dated respectively as of the
Execution Time and as of the Closing Date, in form and substance reasonably
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the applicable published
rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included in the Registration Statement
and the Prospectus and reported on by them comply in form in all
material
- 19 -
respects with the applicable accounting requirements of the Act and
the related published rule and regulations; and
(ii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus agrees with the
accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
(i) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraphs (f) and (g) of this Section
6 or (ii) any change, or any development involving a prospective change, in
or affecting the business or properties of the Company and its subsidiaries
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or delivery
of the Shares as contemplated by the Registration Statement (exclusive of
any amendment thereof) and the Prospectus (exclusive of any supplement
thereto).
(j) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(k) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
(l) The Representatives shall have received on each Closing Date from
Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., counsel for the
Company, an opinion, addressed to the Representatives and dated such
Closing Date, and stating in effect that:
- 20 -
(i) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware. Each subsidiary of the Company has been duly
incorporated or formed and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation or
organization. The Company and its subsidiaries are duly qualified and
in good standing as a foreign corporation in each jurisdiction in
which the character or location of its assets or properties (owned,
leased or licensed) or the nature of its business makes such
qualification necessary except for such jurisdictions where the
failure to so qualify would not have a material adverse effect on the
assets or properties, business, results of operations or financial
condition of the Company or its subsidiaries, taken as a consolidated
whole. The Company has no subsidiaries other than the Subsidiary
Guarantors party to the Indenture and, on the Closing Date, Aviall
U.K. (as defined in the Prospectus), and does not control, directly or
indirectly, any corporation, partnership, joint venture, association
or other business organization. The Company and its subsidiaries
have all requisite power and authority, and to such counsel's
knowledge after due investigation all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits of and
from all governmental or regulatory bodies or any other person or
entity, to own, lease and license its assets and properties and
conduct its businesses as now being conducted and as described in the
Registration Statement and the Prospectus, except for such licenses,
certificates or permits which, if not obtained, would not have a
material adverse effect on the Company or its subsidiaries, taken as a
consolidated whole; and the Company has all such corporate power and
authority, and such authorizations, approvals, consents, orders,
licenses, certificates and permits to enter into, deliver and perform
this Agreement and to issue and sell the Shares (except as may be
required under the Securities Act and state and foreign Blue Sky
laws);
(ii) As of March 31, 1996, the Company had an authorized and
outstanding capital stock as set forth under the caption
"Capitalization" in the Registration Statement and the Prospectus.
All of the outstanding shares of Common Stock have been duly and
validly issued and are fully paid and nonassessable and none of them
was issued in violation of any preemptive or other similar right. The
Shares, when issued (in the case of Shares to be sold by the Company)
and sold pursuant to
- 21 -
this Agreement, will be duly and validly issued, fully paid and
nonassessable and none of them will be issued in violation of any
preemptive or other similar right. Except as disclosed in the
Registration Statement and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance of, and no
commitment, plan or arrangement to issue, any share of stock of the
Company or any security convertible into, or exercisable or
exchangeable for, such stock. The Common Stock and the Shares conform
in all material respects to all statements in relation thereto
contained in the Registration Statement and the Prospectus;
(iii) no holders of securities of the Company have
rights to the registration of such securities under the Registration
Statement;
(iv) this Agreement has been duly and validly executed
and delivered by the Company and constitutes and will constitute the
legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except (A) as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles and
(B) to the extent that rights to indemnity or contribution under this
Agreement may be limited by Federal and state securities laws or the
public policy underlying such laws.
(v) the Company and each subsidiary have all necessary
corporate power and authority to enter into and consummate the
Transaction and execute, deliver and perform their obligations under
the Transaction Documents to which they are a party; each Transaction
Document has been or, by the Closing Date, will be duly executed and
delivered by the Company and each of it subsidiaries party thereto
substantially in the form previously delivered to you and, when
executed and delivered by the Company or such subsidiary, will
constitute legal, valid and binding obligations of the Company and
such subsidiary enforceable against the Company or such subsidiary, as
the case may be, in accordance with their respective terms, except (A)
as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles and
(B) to the extent that rights to indemnity or contribution under the
Note Underwriting Agreement may be limited by
- 22 -
Federal and state securities laws or the public policy underlying such
laws;
(vi) to such counsel's knowledge after due investigation,
each of the Company and its subsidiaries is not in violation of any
term or provision of its charter or by-laws;
(vii) neither the execution, delivery and performance of this
Agreement and the Transaction Documents by the Company and its
subsidiaries party thereto nor the consummation of any of the
transactions contemplated hereby (including, without limitation, the
issuance and sale by the Company of the Shares) will give rise to a
right to terminate or accelerate the due date of any payment due
under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or an event which with notice
or lapse of time or both would constitute a default) under, or require
any consent or waiver under, or result in the execution or imposition
of any lien, charge or encumbrance upon any properties or assets of
the Company and its subsidiaries pursuant to the terms of, (i) to such
counsel's knowledge after due investigation, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company or
of its subsidiaries is a party or by which it or any of its properties
or businesses is bound, (ii) any term or provision of its charter or
by-laws or (iii) to such counsel's knowledge after due investigation,
any franchise, license, permit, judgment, decree, order, statute, rule
or regulation, in any such case where termination, acceleration,
conflict, breach, default, event of default, lien, charge,
encumbrance, whether or not asserted or imposed, would have a material
adverse effect on the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the
Company and its subsidiaries, taken as a consolidated whole;
(viii) to such counsel's knowledge after due investigation, no
default exists, and no event has occurred which with notice or lapse
of time or both would constitute a default, in the due performance and
observance of any term, covenant or condition, by the Company and its
subsidiaries, of any agreement, instrument or other instrument to
which the Company or any of its subsidiaries is a party or by which it
or any of its subsidiaries' properties or business may be bound or
affected which default or event would have a material adverse effect
on the assets or properties, business, results of operations,
prospects or condition
- 23 -
(financial or otherwise) of the Company and its subsidiaries, taken as
a consolidated whole;
(ix) except as disclosed in the Registration Statement and the
Prospectus, to such counsel's knowledge after due investigation, there
are no pending actions, suits or proceedings (governmental or
otherwise) against or affecting the Company, any of its subsidiaries
or any of their respective properties that, if determined adversely to
the Company or any of its subsidiaries, could individually or in the
aggregate have a material adverse effect on the financial condition or
business, properties, net worth or results of operations of the
Company and its subsidiaries taken as a consolidated whole, or would
materially and adversely affect the ability of the Company or any of
its subsidiaries to perform their respective obligations under this
Agreement, or which are otherwise material in the context of the sale
of the Shares; and, to such counsel's knowledge after due
investigation, no such actions, suits or proceedings are threatened;
(x) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the best knowledge
of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Prospectus (other than the financial statements and
other financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and the
respective rules thereunder; and such counsel has no reason to believe
that at the Effective Date the Registration Statement contained 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 not misleading or that the Prospectus includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(xi) the statements in the prospectus under
"Business--Government Regulation"; "--Environmental Matters"; "--Legal
Proceedings"; "Certain Transactions";
- 24 -
"Description of Capital Stock"; "Shares Eligible For Future Sale"; and
"Description of Certain Indebtedness" insofar as such statements
constitute a summary of documents referred to therein or matters of
law, are accurate summaries of the material provisions thereof and
accurately present the information required with respect to such
documents and matters. All contracts and other documents required to
be filed as exhibits to, or described in, the Registration Statement
have been so filed with the Commission or are described as required in
the Registration Statement, as the case may be.
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company and
public officials. Copies of such certificates shall be furnished to the
Representatives and counsel for the Underwriters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives and representatives of the
independent certified public accountants of the Company, at which conferences
the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus (except as
specified in the foregoing opinion), on the basis of the foregoing no facts have
come to the attention of such counsel which have caused such counsel to believe
that the Registration Statement at the time it became effective and at each
Closing Date contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as of its date and at
each Closing Date contained any untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading (it
being understood that such counsel need not express any belief with respect to
the financial statements and schedules and other financial data included in the
Registration Statement or the Prospectus).
(m) The Representatives shall have received on each Closing Date from
counsel for the Selling Stockholder, an opinion, addressed to the
Representatives and dated such Closing Date, and stating in effect that:
(i) This Agreement has been duly and validly executed and
delivered by the Selling Stockholder and
- 25 -
constitutes and will constitute the legal, valid and binding
obligation of the Selling Stockholder, enforceable against the Selling
Stockholder in accordance with its terms, except (i) as the
enforceability hereof and thereof may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles and
(ii) to the extent that rights to indemnity or contribution under this
Agreement may be limited by federal and state securities laws or the
public policy underlying such laws.
(ii) To such counsel's knowledge after due investigation, no
consent, approval, authorization or order of any Federal or state
court or governmental agency or body is required for the performance
of this Agreement by the Selling Stockholder or the sale by the
Selling Stockholder of the Shares to be sold by it hereunder, except
such as have been obtained under the Securities Act and such as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of such Shares by the several
Underwriters (as to which such counsel need express no opinion) and
such as may be required under the rules of the National Association of
Securities Dealers, Inc. with respect to the underwriting arrangements
reflected in this Agreement (as to which such counsel need express no
opinion).
(iii) Except as disclosed in the Registration Statement and the
Prospectus, to such counsel's knowledge after due investigation, there
are no pending actions, suits or proceedings against or affecting the
Selling Stockholder, or any of its properties that, if determined
adversely to the Selling Stockholder, could individually or in the
aggregate have a material adverse effect on the financial condition or
business, properties, net worth or results of operations of the
Selling Stockholder, or would materially and adversely affect the
ability of the Selling Stockholder to perform its obligations under
this Agreement, or which are otherwise material in the context of the
sale of the Shares; and no such actions, suits or proceedings are
threatened.
(iv) Each of the Underwriters has received good and valid title
to the Shares being sold by the Selling Stockholder hereunder, free
and clear of any liens, encumbrances, security interests and claims
whatsoever.
- 26 -
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company, the
Selling Stockholder and public officials. Copies of such certificates shall be
furnished to the Representatives and counsel for the Underwriters.
(n) All proceedings taken in connection with the sale of the Firm
Shares and the Option Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and their counsel
and the Underwriters shall have received from Morgan, Lewis & Bockius LLP a
favorable opinion, addressed to the Representatives and dated such Closing
Date, with respect to the Shares, the Registration Statement and the
Prospectus and such other related matters as the Representatives may
reasonably request, and the Company and the Selling Stockholder shall have
furnished to Morgan, Lewis & Bockius LLP such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(o) The Representatives shall have received on each Closing Date a
certificate, including exhibits thereto, addressed to the Representatives
and dated such Closing Date, of the Secretary or an Assistant Secretary of
the Company, signed in such officer's capacity as such officer, as to the
(i) certificate of incorporation and bylaws of the Company, (ii)
resolutions authorizing the execution and delivery of the Registration
Statement, this Agreement and the Transactions Documents and the
performance of the transactions contemplated by thereby, the Registration
Statement, the Prospectus and the offering of the Shares and (iii)
incumbency of the person or persons authorized to execute and deliver the
Registration Statement, this Agreement and the Transaction Documents and
any other documents contemplated by the offering of the Shares.
(p) The Representatives shall have received on each Closing Date
certificates of the Secretaries of States (or comparable officials) where
the Company is incorporated and owns or leases property as to the good
standing of the Company, listing all charter documents on file,
qualification of the Company to do business as a foreign corporation,
payment of taxes and filing of annual reports. The Representatives shall
have received copies of all charter documents of the Company certified by
the Secretary of State of the State of Delaware.
(q) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives, and dated such Closing Date,
of an executive officer of the Company to the effect that the signer of
such certificate has reviewed and understands the
- 27 -
provisions of Section 517.075 of the Florida Statutes, and represents that
the Company has complied, and at all times will comply, with all provisions
of Section 517.075 and further, that as of such Closing Date, neither the
Company nor any of its affiliates does business with the government of Cuba
or with any person or affiliate located in Cuba.
(r) At or prior to the Closing Date, the Company shall have entered
into the New Credit Facility; no event shall have occurred and be
continuing, the occurrence or continuance of which would relieve the
lenders named therein of their obligation to advance funds, or preclude
them from advancing funds, to the Company pursuant to the terms of the New
Credit Facility; the New Credit Facility shall conform in all material
respects to the terms and provisions described in the Prospectus; and the
Company shall have provided to you and your counsel copies of such closing
documents delivered to the lenders as you or your counsel may reasonably
request (including originals addressed to you of any legal opinions of
counsel for the Company).
(s) At the Closing Date, the Purchase Agreement shall be in full
force and effect; the closing contemplated by the Purchase Agreement shall
have been consummated in accordance with the terms thereof in all material
respects (except to the extent any conditions precedent have been waived
with your prior written consent, which consent shall not be unreasonably
withheld); and the Company shall have provided to you or your counsel
copies of all closing documents delivered to the parties to the
transactions contemplated by the Purchase Agreement (including originals
addressed to you of any legal opinions of counsel for the Company).
(t) At the Closing Date, the Company shall have issued and sold the
Notes pursuant to the Indenture and the Note Underwriting Agreement.
6. COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDER. (A) The
Company, and where specifically stated to be a covenant of the Selling
Stockholder, the Selling Stockholder, covenants and agrees as follows:
(a) The Company shall prepare the Prospectus in a form approved by
the Representatives and file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement,
or, if such second business day would be more than fifteen business days
after the Effective Date of the Registration Statement or any post-
effective amendment thereto, such earlier date as would permit such
prospectus to be filed without filing a post-effective amendment as set
- 28 -
forth in Rule 430A(a)(3) under the Securities Act, and shall promptly
advise the Representatives (i) when the Registration Statement shall have
become effective, (ii) when any amendment thereof shall have become
effective, (iii) of any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional information,
(iv) of the prevention or suspension of the use of any preliminary
prospectus or the Prospectus or of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose and (v)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company shall not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Company has furnished the
Representatives a copy for its review prior to filing and shall not file
any such proposed amendment or supplement to which the Representatives
reasonably object. The Company shall use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act and the Rules, any event
occurs as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the
Securities Act or the Rules, the Company promptly shall prepare and file
with the Commission, subject to the second sentence of paragraph (a) of
this Section 6(A), an amendment or supplement which shall correct such
statement or omission or an amendment which shall effect such compliance.
(c) The Company shall make generally available to its security
holders and to the Representatives as soon as practicable, but not later
than 45 days after the end of the 12-month period beginning at the end of
the fiscal quarter of the Company during which the Effective Date occurs
(or 90 days if such 12-month period coincides with the Company's fiscal
year), an earnings statement (which need not be audited) of the Company,
covering such 12-month period, which shall satisfy the provisions of
Section 11(a) of the Securities Act or Rule 158 of the Rules.
- 29 -
(d) The Company shall furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including all exhibits thereto and amendments thereof) and to
each other Underwriter a copy of the Registration Statement (without
exhibits thereto) and all amendments thereof and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Securities
Act or the Rules, as many copies of any preliminary prospectus and the
Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
(e) The Company and the Selling Stockholder shall cooperate with the
Representatives and their counsel in endeavoring to qualify the Shares for
offer and sale under the laws of such jurisdictions as the Representatives
may designate and shall maintain such qualifications in effect so long as
required for the distribution of the Shares; provided, however, that
neither the Company nor any Selling Stockholder shall be required in
connection therewith, as a condition thereof, to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction or subject itself to taxation as doing business in any
jurisdiction.
(f) For a period of five years after the date of this Agreement, the
Company shall supply to the Representatives, and to each other Underwriter
who may so request in writing, copies of such financial statements and
other periodic and special reports as the Company may from time to time
distribute generally to the holders of any class of its capital stock and
furnish to the Representatives a copy of each annual or other report it
shall be required to file with the Commission.
(g) Without the prior written consent of the Representatives, for a
period of 90 days after the date of this Agreement, the Company shall not
issue, sell or register with the Commission, or otherwise encumber or
dispose of, directly or indirectly, any equity securities of the Company
(or any securities convertible into or exercisable or exchangeable for
equity securities of the Company), except for (i) the issuance of the
Shares pursuant to the Registration Statement and (ii) the issuance of
shares pursuant to the exercise of outstanding options or warrants or the
grant or issuance of options under the Company's existing stock option and
employee stock purchase plans.
(h) On or before completion of this offering, the Company shall make
all filings required under applicable
- 30 -
securities laws and by the Nasdaq National Market (including any required
registration under the Exchange Act).
(B) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses of the
Company and the Selling Stockholder (other than costs and expenses of the
Selling Stockholder set forth in Section 6(c)) incident to the public offering
of the Shares and the performance of the obligations of the Company under this
Agreement including those relating to (i) the preparation, printing, filing and
distribution of the Registration Statement including all exhibits thereto, each
preliminary prospectus, the Prospectus, all amendments and supplements to the
Registration Statement and the Prospectus, and the printing, filing and
distribution of this Agreement; (ii) the preparation and delivery of
certificates for the Shares to the Underwriters; (iii) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the various jurisdictions referred to in Section 6(A)(e), including the
fees and disbursements of counsel for the Underwriters in connection with such
registration and qualification and the preparation, printing, distribution and
shipment of preliminary and supplementary Blue Sky memoranda; (iv) the
furnishing (including costs of shipping and mailing) to the Representatives and
to the Underwriters of copies of each preliminary prospectus, the Prospectus and
all amendments or supplements to the Prospectus, and of the several documents
required by this Section to be so furnished, as may be reasonably requested for
use in connection with the offering and sale of the Shares by the Underwriters
or by dealers to whom Shares may be sold; (v) the filing fees of the National
Association of Securities Dealers, Inc. in connection with its review of the
terms of the public offering; (vi) the furnishing (including costs of shipping
and mailing) to the Representatives and to the Underwriters of copies of all
reports and information required by Section 6(A)(f); and (vii) inclusion of the
Shares for quotation on the Nasdaq National Market.
(C) The Selling Stockholder agrees that it will pay (i) all fees and
expenses of the Selling Stockholder's counsel and (ii) all stock transfer taxes,
stamp duties and other similar taxes, if any, payable (A) upon the sale,
issuance or delivery of the Shares to be sold by the Selling Stockholder to the
Underwriters, (B) upon the purchase by the Underwriters of the Shares to be sold
by the Selling Stockholder, (C) upon resales of the Shares in connection with
the distribution contemplated hereby or (D) in connection with the consummation
by the Selling Stockholder of any of its obligations under this Agreement.
- 31 -
7. INDEMNIFICATION.
(a) Each of the Company and the Selling Stockholder agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all losses, claims,
damages and liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection with, and
any amount paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they, or any of them, may become subject under
the Securities Act, the Exchange Act or other Federal or state law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto, or arise out of or are based upon any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that such indemnity shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) on
account of any losses, claims, damages or liabilities arising from the sale
of the Shares to any person by such Underwriter (i) if such untrue
statement or omission or alleged untrue statement or omission was made in
such preliminary prospectus, the Registration Statement or the Prospectus,
or such amendment or supplement, in reliance upon and in conformity with
information furnished in writing to the Company by the Representatives on
behalf of any Underwriter specifically for use therein, or, (ii) as to any
preliminary prospectus, with respect to any Underwriter, to the extent that
any such loss, claim, damage or liability of such Underwriter results from
an untrue statement of a material fact contained in, or the omission of a
material fact from, such preliminary prospectus, which untrue statement or
omission was corrected in the Prospectus, if such Underwriter sold Shares
to the person alleging such loss, claim, damage or liability without
sending or giving, at or prior to the written confirmation of such sale, a
copy of the Prospectus, unless such failure resulted from the failure of
the Company to deliver copies of the Prospectus to such Underwriter on a
timely basis to permit such sending or giving; provided, that the
Underwriters may seek to enforce their rights to indemnity against the
Selling Stockholder pursuant to this Section 7(a) only if the Underwriters
believe in good faith that there is a material risk that they may not
obtain such payment from the Company despite using their best efforts to do
so. The Company and the Selling Stockholder may agree, as among themselves
and
- 32 -
without limiting the rights of the Underwriters under this Agreement, as to
their respective amounts of such liability for which they each shall be
responsible. This indemnity agreement will be in addition to any liability
which the Company or the Selling Stockholder may otherwise have; provided,
however, that notwithstanding anything in this Agreement to the contrary,
the Selling Stockholder shall not be liable under this Section 7(a), or
under any other provision of this Agreement, for any amount in excess of
the net proceeds received by the Selling Shareholder.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Selling Stockholder, each person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each director of the
Company, and each officer of the Company who signs the Registration
Statement, to the same extent as the foregoing indemnity from the Company
and the Selling Stockholder to each Underwriter, but only insofar as such
losses, claims, damages or liabilities arise out of or are based upon any
untrue statement or omission or alleged untrue statement or omission which
was made in any preliminary prospectus, the Registration Statement or the
Prospectus, or any amendment thereof or supplement thereto, contained in
the last paragraph of the cover page, in the paragraphs relating to
stabilization on the inside front cover page of the Prospectus and the
statements with respect to the public offering of the Shares under the
caption "Underwriting" in the Prospectus; provided, however, that the
obligation of each Underwriter to indemnify the Company or the Selling
Stockholder (including any controlling person, director or officer thereof)
shall be limited to the net proceeds received by the Company or the Selling
Stockholder, as the case may be.
(c) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim is to be made against an indemnifying party or parties under this
Section, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 7(a) or 7(b) shall be available to
any party who shall fail to give notice as provided in this Section 7(c) if
the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure to
give such notice but the omission so to notify such indemnifying party of
any such action, suit or proceeding shall not relieve it from any liability
that it may have to any indemnified party for contribution or
- 33 -
otherwise than under this Section. In case any such action, suit or
proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and the
approval by the indemnified party of such counsel, the indemnifying party
shall not be liable to such indemnified party for any legal or other
expenses, except as provided below and except for the reasonable costs of
investigation subsequently incurred by such indemnified party in connection
with the defense thereof. The indemnified party shall have the right to
employ its separate counsel in any such action, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the employment of counsel by such indemnified party has been authorized
in writing by the indemnifying parties, (ii) the indemnified party shall
have reasonably concluded that there may be a conflict of interest between
the indemnifying parties and the indemnified party in the conduct of the
defense of such action (in which case the indemnifying parties shall not
have the right to direct the defense of such action on behalf of the
indemnified party), it being understood that the indemnifying parties shall
not be liable for the expenses of more than one separate counsel
representing the indemnified party to such action or (iii) the indemnifying
parties shall not have employed counsel to assume the defense of such
action within a reasonable time after notice of the commencement thereof,
in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying parties. An indemnifying party shall not be
liable for any settlement of any action, suit, proceeding or claim effected
without its written consent.
8. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 7(a) or 7(b) is due in accordance with its terms but for any reason is
held to be unavailable from the Company or the Selling Stockholder or the
Underwriters, as the case may be, the Company, the Selling Stockholder and the
Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including any investigation, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting any contribution
received by any person entitled hereunder to contribution from any person who
may be liable for contribution) to which the Company, the Selling Stockholder
and
- 34 -
one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholder on the one hand and the Underwriters on the other from
the offering of the Shares or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in Section 7
hereof, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company and the
Selling Stockholder on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Selling Stockholder and the Underwriters shall be deemed to be in the same
proportion as (x) the total proceeds from the offering (net of underwriting
discount but before deducting expenses) received by the Company or the
Selling Stockholder, as set forth in the table on the cover page of the
Prospectus, bear to (y) the underwriting discount received by the
Underwriters, as set forth in the table on the cover page of the Prospectus.
The relative fault of the Company, the Selling Stockholder and the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact related to
information supplied by the Company, the Selling Stockholder or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholder and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 8, (i) in no case shall any
Underwriter (except as may be provided in the Agreement Among Underwriters)
be liable or responsible for any amount in excess of the underwriting
discount applicable to the Shares purchased by such Underwriter hereunder,
and (ii) the Underwriters may seek to enforce their rights to contribution
against any Selling Stockholder pursuant to this Section 8 only if the
Underwriters believe in good faith that there is a material risk that they
may not obtain such contribution from the Company despite using their best
efforts to do so. Notwithstanding the provisions of this Section 8, in no
case shall a Selling Stockholder be liable or responsible for any amount in
excess of the net proceeds received by the Selling Shareholder, provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities
- 35 -
Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of the Section 15 of the Securities Act or Section
20(a) of the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) in the second preceding sentence and to the immediately preceding sentence
of this Section 8. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this Section, notify such party or parties from whom
contribution may be sought, but the omission so to notify such party or parties
from whom contribution may be sought shall not relieve the party or parties from
whom contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent. The Underwriter's obligations to contribute
pursuant to this Section 8 are several in proportion to their respective
underwriting commitments and not joint.
9. TERMINATION. This Agreement may be terminated with respect to
the Shares to be purchased on a Closing Date by the Representatives by notifying
the Company at any time
(a) in the absolute discretion of the Representatives at or before
any Closing Date: (i) if on or prior to such date, any domestic or
international event or act or occurrence has materially disrupted, or in
the opinion of the Representatives will in the future materially disrupt,
the securities markets; (ii) if there has occurred any new outbreak or
material escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as to make
it, in the judgment of the Representatives, inadvisable to proceed with the
offering; (iii) if there shall be such a material adverse change in general
financial, political or economic conditions or the effect of international
conditions on the financial markets in the United States is such as to make
it, in the judgment of the Representatives, inadvisable or impracticable to
market the Shares; (iv) if trading in the Shares has been suspended by the
Commission or trading generally on the New York Stock Exchange, Inc. or on
the National Association of Securities Dealers Automated Quotation National
Market System has been suspended or limited, or minimum or maximum ranges
for prices for securities shall have been fixed, or maximum ranges for
prices for securities have been required, by said exchanges
- 36 -
or by order of the Commission, the National Association of Securities
Dealers, Inc., or any other governmental or regulatory authority; or (v) if
a banking moratorium has been declared by any state or Federal authority,
or
(b) at or before any Closing Date, that any of the conditions
specified in Section 5 shall not have been fulfilled when and as required
by this Agreement.
If this Agreement is terminated pursuant to any of its provisions,
neither the Company nor the Selling Stockholder shall be under any liability to
any Underwriter, and no Underwriter shall be under any liability to the Company
or the Selling Stockholder, except that (y) if this Agreement is terminated by
the Representatives or the Underwriters because of any failure, refusal or
inability on the part of the Company or the Selling Stockholder to comply with
the terms or to fulfill any of the conditions of this Agreement, the Company
will reimburse the Underwriters for all out-of-pocket expenses (including the
fees and disbursements of their counsel) incurred by them in connection with the
proposed purchase and sale of the Shares or in contemplation of performing their
obligations hereunder and (z) no Underwriter who shall have failed or refused to
purchase the Shares agreed to be purchased by it under this Agreement, without
some reason sufficient hereunder to justify termination of its obligations under
this Agreement, shall be relieved of liability to the Company, the Selling
Stockholder or to the other Underwriters for damages occasioned by its failure
or refusal.
10. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters
shall fail (other than for a reason sufficient to justify the cancellation or
termination of this Agreement under Section 9) to purchase on any Closing Date
the Shares agreed to be purchased on such Closing Date by such Underwriter or
Underwriters, the Representatives may find one or more substitute underwriters
to purchase such Shares or make such other arrangements as the Representatives
may deem advisable or one or more of the remaining Underwriters may agree to
purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, then
each of the nondefaulting Underwriters shall be obligated to purchase such
Shares on the terms herein set forth in proportion to their respective
obligations hereunder; provided, that in no event shall the maximum number
of Shares that any Underwriter has agreed to purchase pursuant to Section 1
be
- 37 -
increased pursuant to this Section 10 by more than one-ninth of such number
of Shares without the written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that all
the Underwriters are obligated to purchase on such Closing Date, then the
Company shall be entitled to an additional business day within which it
may, but is not obligated to, find one or more substitute underwriters
reasonably satisfactory to the Representatives to purchase such Shares upon
the terms set forth in this Agreement.
In any such case, either the Representatives or the Company shall have
the right to postpone the applicable Closing Date for a period of not more than
five business days in order that necessary changes and arrangements (including
any necessary amendments or supplements to the Registration Statement or
Prospectus) may be effected by the Representatives and the Company. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, and none of the non
defaulting Underwriters or the Company shall make arrangements pursuant to this
Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company or the Selling
Stockholder and without liability on the part of the Company and the Selling
Stockholder, except in both cases as provided in Sections 6(B), 6(C), 7, 8 and
9. The provisions of this Section shall not in any way affect the liability of
any defaulting Underwriter to the Company, the Selling Stockholder or the non
defaulting Underwriters arising out of such default. A substitute underwriter
hereunder shall become an Underwriter for all purposes of this Agreement.
11. MISCELLANEOUS. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers, of
the Selling Stockholder and of the Underwriters set forth in or made in
certificates delivered pursuant to this Agreement shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter,
the Selling Stockholder or the Company or any of the officers, directors or
controlling persons referred to in Sections 7 and 8 hereof, and shall survive
delivery of and payment for the Shares. The provisions of Sections 6(B), 6(C),
7, 8 and 9 shall survive the termination or cancellation of this Agreement.
- 38 -
This Agreement has been and is made for the benefit of the
Underwriters, the Company and the Selling Stockholder and their respective
successors and assigns, and, to the extent expressed herein, for the benefit of
persons controlling any of the Underwriters, the Company or the Selling
Stockholder, and directors and officers of the Company and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include any purchaser of Shares from any Underwriter merely because of such
purchase.
All notices and communications hereunder shall be in writing and
mailed or delivered or by telephone or telegraph if subsequently confirmed in
writing, (a) if to the Representatives, c/o Oppenheimer & Co., Inc., Oppenheimer
Tower, World Financial Center, New York, New York 10281 Attention: Richard D.
White, (b) if to the Company, to its agent for service as such agent's address
appears on the cover page of the Registration Statement and (c) if to the
Selling Stockholder, to Eugene P. Conese, c/o Greenwich Air Services, Inc., 4590
Northwest 36th Street, Building 23, Miami, Florida 33122.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
- 39 -
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
GREENWICH AIR SERVICES, INC.
By
------------------------
Title:
SELLING STOCKHOLDER
---------------------------
Eugene P. Conese
Confirmed:
OPPENHEIMER & CO., INC.
ALEX. BROWN & SONS INCORPORATED
DILLON, READ & CO. INC.
Acting severally on behalf
of itself and as representative
of the several Underwriters
named in Schedule I annexed hereto.
By Oppenheimer & Co., Inc.
By
----------------------------
Title:
- 40 -
SCHEDULE I
NUMBER OF
FIRM SHARES TO
NAME BE PURCHASED
---- --------------
Oppenheimer & Co., Inc.. . . . . . . . . . . . . . . . . . . .
Alex. Brown & Sons Incorporated. . . . . . . . . . . . . . . .
Dillon, Read & Co. Inc.. . . . . . . . . . . . . . . . . . . .
----------
Total. . . . . . . . . . . . . . . . . . . . . . . . 4,000,000
----------
----------
- 41 -