Exhibit 1.1
FORM OF
VOLUME SERVICES AMERICA HOLDINGS, INC.
[ ] Income Deposit Securities
Each Representing One Share of Common Stock and $[ ] Principal Amount of [ ]%
Subordinated Notes Due 2013
UNDERWRITING AGREEMENT
December [ ], 2003
CIBC World Markets Corp.
UBS Securities LLC
RBC Dain Rauscher Inc.
McDonald Investments Inc., A KeyCorp Company
BMO Nesbitt Burns Inc.
as Representatives of the several
Underwriters named in Schedule I hereto
c/o CIBC World Markets Corp.
417 5th Avenue, 2nd Floor
New York, New York 10016
Ladies and Gentlemen:
Volume Services America Holdings, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions contained herein, to
sell to you and the other underwriters named on Schedule I to this Agreement
(the "Underwriters"), for whom you are acting as Representatives (the
"Representatives"), an aggregate of [ ] Income Deposit Securities ("IDSs"),
representing [ ] shares of the Company's common stock, $0.01 par value per share
(the "Common Stock") and $[ ] aggregate principal amount of the Company's [ ]%
Subordinated Notes due 2013 (the "Notes"). Each IDS represents one share of
Common Stock and one Note with a $[ ] principal amount. The respective amounts
of the aforesaid [ ] IDSs (the "Firm Securities") to be purchased by each of the
several Underwriters are set forth opposite their names on Schedule I hereto. In
addition, the Company proposes to grant to the Underwriters an option to
purchase up to an additional [ ] IDSs (the "Option Securities") representing [ ]
shares of Common Stock and $[ ] aggregate principal amount of Notes for the
purpose of covering over-allotments in connection with the sale of the Firm
Securities. The Firm Securities and the Option Securities are collectively
called the "Offered Securities." Unless the context otherwise requires,
references to the "Firm Securities", the "Option Securities" and the "Offered
Securities" herein shall constitute reference to the IDSs and to the shares of
Common Stock (the "Common Shares"), the Notes and the Guarantees (as defined
below) represented by such IDSs.
The Notes will be issued pursuant to an indenture to be dated as of
the Firm Securities Closing Date (as hereinafter defined) between the company,
each of the subsidiaries of
the Company listed on Schedule II hereto (collectively, the "Guarantors") and
The Bank of New York, as trustee (the "Trustee"). The Notes will be guaranteed
(the "Guarantees") on an unsecured subordinated basis by each of the Guarantors.
The Company has prepared and filed in conformity with the
requirements of the Securities Act of 1933 of the United States, as amended (the
"Securities Act"), and the published rules and regulations thereunder (the
"Rules") adopted by the United States Securities and Exchange Commission (the
"Commission") a Registration Statement (as hereinafter defined) on Form S-1 (No.
333-103169), including a preliminary prospectus relating to the Offered
Securities, and such amendments thereof as may have been required to the date of
this Agreement. Copies of such Registration Statement (including all amendments
thereof) and of the related Preliminary Prospectus (as hereinafter defined) have
heretofore been delivered by the Company to you. The term "Preliminary
Prospectus" means any preliminary prospectus included at any time as a part of
the Registration Statement or filed with the Commission by the Company pursuant
to Rule 424(a) of the Rules. The term "Registration Statement" as used in this
Agreement means the initial registration statement (including all exhibits,
financial schedules), as amended at the time and on the date it becomes
effective (the "Effective Date"), including the information (if any) contained
in the form of final prospectus filed with the Commission pursuant to Rule
424(b) of the Rules and deemed to be part thereof at the time of effectiveness
pursuant to Rule 430A of the Rules. If the Company has filed an abbreviated
registration statement to register additional Offered Securities pursuant to
Rule 462(b) under the Rules (the "462(b) Registration Statement"), then any
reference herein to the Registration Statement shall also be deemed to include
such 462(b) Registration Statement. The term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement at the time of effectiveness or, if Rule 430A of the Rules is relied
on, the term Prospectus shall also include the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules.
The Company has prepared and filed a preliminary prospectus, dated
February 12, 2003 and [five] amendments thereof (each, a "Canadian Preliminary
Prospectus") with respect to the Offered Securities in each of the provinces of
Canada (the "Qualifying Provinces") in conformity with the requirements of
applicable securities laws of each of the Qualifying Provinces and the
respective regulations and rules made under those securities laws together with
all applicable policy statements, blanket orders and rulings of the applicable
securities commission or regulatory authority in each of the Qualifying
Provinces (the "Canadian Securities Laws"). The term "Canadian Prospectus" as
used in this Agreement means the final prospectus dated the date of this
Agreement, approved, signed and certified in accordance with the Canadian
Securities Laws, relating to the qualification for distribution of the Offered
Securities under the Canadian Securities Laws. The term "Canadian Supplementary
Material" as used in this Agreement means any amendment to the Canadian
Prospectus and any amendment or supplemental prospectus or ancillary materials
that may be filed by or on behalf of the Company under the Canadian Securities
Laws relating to the qualification for distribution of the Offered Securities in
each of the Qualifying Provinces.
The Company understands that the Underwriters propose to make a
public offering of the Offered Securities concurrently in the United States and
each of the Qualifying Provinces, as set forth in and pursuant to the Prospectus
and the Canadian Prospectus, as soon after the Effective Date and the date of
this Agreement as the Representatives deem advisable.
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The Company hereby confirms that the Underwriters and dealers have been
authorized to distribute or cause to be distributed each Preliminary Prospectus
in the United States and the Canadian Preliminary Prospectus in the Qualifying
Provinces 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) in the United States and each Canadian Prospectus
(as from time to time amended or supplemented if the Company furnishes
amendments or supplements thereto to the Underwriters) in the Qualifying
Provinces.
In connection with this offering, the Company plans to recapitalize
and restructure certain of the indebtedness of the Company and its subsidiaries.
The recapitalization and restructuring will include the following transactions
(collectively, the "Transactions"): (a) entry into a new credit agreement among
Volume Services America, Inc. ("VSA"), the Company and the Guarantors as
guarantors of the credit agreement and a syndicate of lenders including Canadian
Imperial Bank of Commerce, as administrative agent, CIBC World Markets Corp., as
lead arranger and sole bookrunner, providing for up to $50 million in secured
revolving loans and $65 million in term loans (the "Credit Agreement"); (b) a
tender and consent solicitation by VSA for its outstanding $100 million in
principal amount of 11 -1/4% senior subordinated notes due 2009; and (c)
repurchase by the Company of up to 6,844,503 shares of Common Stock held by BCP
Volume L.P., BCP Offshore Volume L.P., VSI Management Direct, L.P. and
Recreational Services L.L.C., for approximately $47.1 million (the "Share
Repurchase").
1. Sale, Purchase, Delivery and Payment for the Offered Securities.
On the basis of the representations, warranties and agreements contained in, and
subject to the terms and conditions of, this Agreement:
(a) The Company agrees to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from
the Company, at a purchase price of $[ ] per IDS (the "Initial Price"),
the number of Firm Securities set forth opposite the name of such
Underwriter under the column "Number of Firm Securities to be Purchased
from the Company" on Schedule I to this Agreement, subject to adjustment
in accordance with Section 8 hereof. The Underwriters hereby agree to pay
the Company $[ ] as an expense reimbursement.
(b) The Company hereby grants to the several Underwriters an option
to purchase, severally and not jointly, all or any part of the Option
Securities at the Initial Price. The number of Option Securities to be
purchased by each Underwriter shall be the same percentage (adjusted by
the Representatives to eliminate fractional securities) of the total
number of Option Securities to be purchased by all of the Underwriters as
such Underwriter is purchasing of the Firm Securities. Such option may be
exercised only to cover over-allotments in the sales of the Firm
Securities 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 Securities Closing Date, and from time to time thereafter
within 30 days after the date of this Agreement, in each case upon
written, facsimile or telegraphic notice, or verbal or telephonic notice
confirmed by written, facsimile 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 Securities Closing Date or at
least two business days before the Option Securities Closing Date (as
defined
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below), as the case may be, setting forth the number of Option Securities
to be purchased and the time and date (if other than the Firm Securities
Closing Date) of such purchase.
(c) Payment of the purchase price for, and delivery of certificates
for, the Firm Securities, and the payment of the expense reimbursement,
shall be made at the offices of Simpson, Thacher & Bartlett LLP, 425
Lexington Avenue, New York, New York 10017, at 10:00 a.m., New York City
time, on the third (fourth, if pricing occurs after 4:30 p.m. New York
City time) business day following the date of this Agreement or at such
time on such other date, not later than ten (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 Securities Closing Date"). In addition, in the event that any or all
of the Option Securities are purchased by the Underwriters, payment of the
purchase price, and delivery of the certificates, for such Option
Securities shall be made at the above-mentioned offices, or at such other
place as shall be agreed upon by the Representatives and the Company, on
each date of delivery as specified in the notice from the Representatives
to the Company (such time and date of delivery and payment are called the
"Option Securities Closing Date"). The Firm Securities Closing Date and
each Option Securities Closing Date are called, individually, a "Closing
Date" and, together, the "Closing Dates."
(d) Payment shall be made to the Company by wire transfer of
immediately available funds against delivery of the respective
certificates to the Representatives for the respective accounts of the
Underwriters of certificates for the Offered Securities to be purchased by
them.
(e) Certificates evidencing the Offered Securities 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 Securities Closing Date or, in the case of Option Securities, on the
day of notice of exercise of the option as described in Section 1(b) and
shall be delivered by or on behalf of the Company to the Underwriters
through the facilities of The Depository Trust Company ("DTC") for the
account of each of such Underwriters. The Company will cause the
certificates representing the Offered Securities to be made available for
checking and packaging, at such place as is designated by the
Representatives, on the full business day before the Firm Securities
Closing Date or the Option Securities Closing Date, as the case may be.
2. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Firm Securities Closing Date and as of each Option Securities Closing Date (if
any), as follows:
(a) On the Effective Date, the Registration Statement complied, and
on the date of the Prospectus, the date any post-effective amendment to
the Registration Statement becomes effective, the date any supplement or
amendment to the Prospectus is filed with the Commission and each Closing
Date, the Registration Statement and the Prospectus (and any amendment
thereof or supplement thereto) will comply, in all material respects, with
the requirements 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
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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 Effective
Date and the other dates referred to above neither the Registration
Statement nor 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 or necessary in
order to make the statements 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 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
the statements therein, in the light of the circumstances under which they
were made, not misleading. If applicable, each Preliminary Prospectus and
the Prospectus delivered to the Underwriters for use in connection with
this offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T. Notwithstanding the foregoing, none of the
representations and warranties in this paragraph 2(a) shall apply to
statements in, or omissions from, the Registration Statement or the
Prospectus made in reliance upon, and in conformity with, information
herein or otherwise furnished in writing by the Representatives on behalf
of the several Underwriters for use in the Registration Statement or the
Prospectus. With respect to the preceding sentence, the Company
acknowledges that the only information furnished in writing by the
Representatives on behalf of the several Underwriters for use in the
Registration Statement or the Prospectus is the sentence on the cover page
of the Prospectus beginning "The underwriters expect to deliver...," and
the following information under the caption "Underwriting" in the
Prospectus: (i) information contained in the 4th and 5th paragraphs
concerning the nature of the offering by the Underwriters, (ii)
information contained in the 5th paragraph with respect to underwriting
concessions and (iii) information contained in the 11th paragraph.
(b) The Registration Statement is effective under the Securities Act
and no stop order preventing or suspending the effectiveness of the
Registration Statement or suspending or preventing the use of the
Prospectus has been issued by the Commission, to the Company's knowledge,
no proceedings for that purpose have been instituted or are threatened
under the Securities Act. Any required filing of the Prospectus and any
supplement thereto pursuant to Rule 424(b) of the Rules has been or will
be made in the manner and within the time period required by such Rule
424(b).
(c) The financial statements of the Company (including all notes and
schedules thereto) included in the Registration Statement, the Prospectus
and the Canadian Prospectus present fairly in all material respects the
financial position of the Company and its consolidated subsidiaries at the
dates indicated and the statement of operations, stockholders' equity and
cash flows of the Company and its consolidated subsidiaries for the
periods specified; and such financial statements and related schedules and
notes
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thereto, and the unaudited financial information filed (i) with the
Commission as part of the Registration Statement, have been prepared in
conformity with generally accepted accounting principles in the United
States or in Canada, as applicable, consistently applied throughout the
periods involved and (ii) with the securities regulatory authorities in
each of the Qualifying Provinces as part of the Canadian Prospectus, have
been prepared in conformity with generally accepted accounting principles
in the United States, consistently applied throughout the periods
involved, and include notes setting out the material differences between
the Company's accounting policies and disclosures under generally accepted
accounting principles in the United States and generally accepted
accounting principles in Canada. The summary and selected financial data
included in the Prospectus and the Canadian Prospectus present fairly the
information shown therein as at the respective dates and for the
respective periods specified and have been presented on a basis consistent
with the consolidated financial statements set forth in the Prospectus and
the Canadian Prospectus and other financial information.
(d) As of their respective dates, the information and statements
contained in each Canadian Preliminary Prospectus and the Canadian
Prospectus are or will be, as applicable, true and correct in all material
respects and contain no misrepresentation (as defined in applicable
Canadian Securities Laws), and constitute or will constitute, as
applicable, full, true and plain disclosure of all material facts relating
to the Offered Securities as required by the Canadian Securities Laws.
Each Canadian Preliminary Prospectus and the Canadian Prospectus as of
their respective dates comply or will comply, as applicable, in all
material respects, with the Canadian Securities Laws. Notwithstanding the
foregoing, none of the representations and warranties in this paragraph
2(d) shall apply to statements in, or omissions from, a Canadian
Preliminary Prospectus or the Canadian Prospectus made in reliance upon,
and in conformity with, information herein or otherwise furnished in
writing by the Representatives on behalf of the several Underwriters for
use in each Canadian Preliminary Prospectus or the Canadian Prospectus.
With respect to the preceding sentence, the Company acknowledges that the
only information furnished in writing by the Representatives on behalf of
the several Underwriters for use in each Canadian Preliminary Prospectus
or the Canadian Prospectus is the sentence on the cover page of the
Prospectus beginning "The underwriters expect to deliver...," and the
following information under the caption "Underwriting" in the Prospectus:
(i) information contained in the 4th and 5th paragraphs concerning the
nature of the offering by the Underwriters, (ii) information contained in
the 5th paragraph with respect to underwriting concessions and (iii)
information contained in the 11th paragraph.
(e) Each Canadian Supplementary Material, if any, together with the
Canadian Prospectus, as applicable, will contain, as of its date,
information and statements that are true and correct in all material
respects and contain no misrepresentation (as defined in applicable
Canadian Securities Laws), and will constitute full, true and plain
disclosure of all material facts relating to the Offered Securities as
required by the Canadian Securities Laws. The Canadian Supplementary
Material as of its date will comply, in all material respects, with the
Canadian Securities Laws.
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(f) Deloitte & Touche LLP, whose reports are filed with the
Commission as a part of the Registration Statement, and with the
securities regulatory authority in each of the Qualifying Provinces as
part of the Canadian Prospectus, (i) are and, during the periods covered
by their reports, were independent public accountants as required by the
Securities Act and the Rules and (ii) are independent with respect to the
Company within the meaning of applicable Canadian Securities Laws.
(g) The Company and each Guarantor is duly organized, validly
existing and in good standing under the laws of their respective
jurisdictions of incorporation or organization. The Company and each
Guarantor is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which the nature of the
business conducted by it or location of the assets or properties owned,
leased or licensed by it requires such qualification, except for such
jurisdictions where the failure to so qualify would not, individually or
in the aggregate, have a material adverse effect on the assets,
properties, condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the Company and its
subsidiaries considered as a whole (a "Material Adverse Effect"); and to
the Company's knowledge, no proceeding has been instituted in any such
jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit
or curtail, such power and authority or qualification.
(h) The Company and each Guarantor has all requisite corporate 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 (collectively, the
"Permits"), to own, lease and license its assets and properties and
conduct its business, all of which are valid and in full force and effect,
except where the lack of such Permits, individually or in the aggregate,
would not have a Material Adverse Effect. The Company and each Guarantor
has fulfilled and performed in all material respects all of its material
obligations with respect to such Permits and no event has occurred that,
to the Company's knowledge, allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the Company thereunder. Except as may be
required under the Securities Act, Canadian Securities Laws, and state and
foreign Blue Sky laws, no other Permits are required to enter into,
deliver and perform this Agreement, the Indenture, the Notes or the
Guarantees and to issue and sell the Offered Securities.
(i) The Company and each Guarantor owns or possesses legally
enforceable rights to use all trademarks, trademark applications, trade
names, service marks, copyrights, copyright applications, licenses,
know-how and other similar rights and proprietary knowledge (collectively,
"Intangibles") necessary for the conduct of its business except where the
failure to own or possess such rights would not have a Material Adverse
Effect. Neither the Company nor any Guarantor has received any notice of
any infringement of or conflict with asserted rights of others with
respect to any Intangibles, which if such assertion of infringement or
conflict were sustained, would be reasonably likely to have a Material
Adverse Effect.
(j) The Company and each Guarantor has good and marketable title in
fee simple to all real property, and good and marketable title to all
other property owned by it, in
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each case free and clear of all liens, encumbrances, claims, security
interests and defects, except such as are described in the financial
statements (including the notes thereto) included in the Prospectus, or
such as do not materially affect the value of such property and do not
materially interfere with the use made or proposed to be made of such
property by the Company and its subsidiaries. All property held under
lease by the Company and the Guarantors is held by them under valid,
existing and enforceable leases, free and clear of all liens,
encumbrances, claims, security interests and defects, except such as are
described in the financial statements (including the notes thereto)
included in the Prospectus, or are not material and do not materially
interfere with the use made or proposed to be made of such property by the
Company and its subsidiaries.
(k) There is no document, contract or other agreement required to be
described in the Registration Statement, the Prospectus or the Canadian
Prospectus or required to be filed as an exhibit to the Registration
Statement which is not described or filed as required by the Securities
Act or Rules or applicable Canadian Securities Laws. Each description of a
contract, document or other agreement in the Registration Statement, the
Prospectus and the Canadian Prospectus accurately reflects in all material
respects the terms of the underlying contract, document or other
agreement. Neither the Company nor any of its subsidiaries, if a
subsidiary is a party, nor to the Company's knowledge, any other party is
in default in the observance or performance of any 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, individually or in the
aggregate, would have a Material Adverse Effect.
(l) 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 or any Guarantor of any other agreement or instrument to which the
Company or any of Guarantor is a party or by which the Company or its
properties or business or a Guarantor or its properties or business may be
bound or affected which default or event, individually or in the
aggregate, would be reasonably likely to have a Material Adverse Effect.
(m) Neither the Company nor any Guarantor is in violation of any
term or provision of its charter or by-laws where the consequences of such
violation, individually or in the aggregate, would have a Material Adverse
Effect.
(n) The Company and each Guarantor has the requisite corporate power
and authority to execute, deliver and perform its obligations under this
Agreement. This Agreement has been duly and validly authorized, executed
and delivered by the Company and each Guarantor.
(o) The Company and each Guarantor have the requisite corporate
power and authority to execute, deliver and perform its obligations under
the Indenture. The Indenture has been duly and validly authorized by the
Company and each Guarantor and meets the requirements for qualification
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and when executed and delivered by the Company and each Guarantor
(assuming the due authorization, execution and delivery by the
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Trustee), will constitute valid and legally binding agreement of the
Company and each Guarantor, enforceable against the Company and each
Guarantor in accordance with their respective terms except that the
enforcement thereof may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
(p) The Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Notes. The Notes
have been duly and validly authorized by the Company for issuance and,
when executed by the Company and authenticated by the Trustee in
accordance with the provisions of the Indenture, and delivered to and paid
for by the Underwriters in accordance with the terms hereof, will be duly
executed, issued and delivered by the Company and will constitute valid
and legally binding obligations of the Company, entitled to the benefits
of the Indenture and enforceable against the Company in accordance with
their terms except that the enforcement thereof may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles (whether considered
in a proceeding in equity or at law) and as implied covenant of good faith
and fair dealing.
(q) Neither the execution, delivery and performance of this
Agreement, the Indenture or the Notes by the Company or each Guarantor, as
applicable, nor the consummation of any of the transactions contemplated
hereby and thereby (including, without limitation, the issuance and sale
by the Company and the Guarantors of the Offered Securities) 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 or any
Guarantor pursuant to the terms of, any indenture, mortgage, deed of
trust, franchise, license or other agreement or instrument to which the
Company or any Guarantor is a party or by which either the Company or the
Guarantors or any of their properties or businesses is bound, except for
such conflicts, breaches, defaults, failures to obtain consents or
waivers, liens, charges or encumbrances that could not reasonably be
expected to have a Material Adverse Effect, nor will such actions result
in any violation of any permit, judgment, decree, order, statute, rule or
regulation applicable to the Company or any Guarantor, or violate any
provision of the charter or by-laws of the Company or any Guarantor.
(r) The Company has authorized and outstanding capital stock as set
forth under the caption "Capitalization" in the Prospectus. The
certificates evidencing the Common Shares are in due and proper legal form
and have been duly authorized for issuance by the Company. All of the
issued and outstanding shares of Common Stock have been duly and validly
issued and are fully paid and nonassessable. There are no statutory
preemptive or other similar rights to subscribe for or to purchase or
acquire any shares of Common Stock of the Company or any Guarantor or any
such rights pursuant to its
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Certificate of Incorporation or by-laws or any agreement or instrument to
or by which the Company or any Guarantor is a party or bound. The Common
Shares 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, the
Prospectus and the Canadian Prospectus, there is no outstanding option,
warrant or other right calling for the issuance of, and there is no
commitment, plan or arrangement to issue, any share of stock of the
Company or any of its subsidiaries or any security convertible into, or
exercisable or exchangeable for, such stock. The IDSs, the Common Shares
and the Notes conform in all material respects to all statements in
relation thereto contained in the Registration Statement, the Prospectus
and the Canadian Prospectus. All outstanding shares of capital stock of
each of the Guarantors have been duly authorized and validly issued, and
are fully paid and nonassessable and are owned directly by the Company or
by another wholly-owned subsidiary of the Company free and clear of any
security interests, liens, encumbrances, equities or claims, other than
those described in the Prospectus.
(s) Except as disclosed in the Registration Statement and the
Prospectus, there is not pending or, to the knowledge of the Company,
threatened any action, suit, proceeding, inquiry or investigation,
governmental or otherwise, to which any of the Company or its subsidiaries
is a party, or to which their respective properties or assets are subject,
before or brought by any court, arbitrator or governmental agency or body,
that, if determined adversely to the Company or any such subsidiary would,
individually or in the aggregate, have a Material Adverse Effect or that
seeks to restrain, enjoin, prevent the consummation of or otherwise
challenge the issuance or sale of the Offered Securities to be sold
hereunder or the application of the proceeds therefrom or the other
transactions described in the Registration Statement.
(t) No holder of any security of the Company has any right, which
has not been waived, to demand registration of, or filing of a prospectus
in Canada in connection with, any security owned by such holder for a
period of 180 days after the date of this Agreement.
(u) Except as disclosed in the Registration Statement, the
Prospectus and the Canadian Prospectus, neither the Company nor any of the
Guarantors is 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.
(v) No transaction has occurred between or among the Company and any
of its officers or directors, stockholders or any affiliate or affiliates
of any such officer or director or shareholder that is required to be
described in and is not described in the Registration Statement, the
Prospectus or the Canadian Prospectus.
(w) 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, the Notes and the IDSs or any security of the Company
to facilitate the sale or resale of any of the Offered Securities.
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(x) The Company and each of its subsidiaries has filed all federal,
state, provincial, local and foreign tax returns which are required to be
filed through the date hereof, which returns are true and correct in all
material respects or has received timely extensions thereof, and has paid
all taxes shown on such returns and all assessments received by it to the
extent that the same have become due. There are no tax audits or
investigations pending, which if adversely determined would have a
Material Adverse Effect; nor are there any material proposed additional
tax assessments against the Company or any of its subsidiaries. There are
no liens for taxes upon any assets of the Company or any of its
subsidiaries.
(y) The IDSs have been duly authorized for listing on the American
Stock Exchange and the Toronto Stock Exchange and the Common Stock have
been duly authorized for listing on the Toronto Stock Exchange, subject to
official Notice of Issuance. A registration statement with respect to the
IDSs has been filed on Form 8-A pursuant to Section 12 of the Exchange
Act, which registration statement complies in all material respects with
the Exchange Act.
(z) The Company has taken no action designed to, or likely to have
the effect of, terminating the registration of the Offered Securities
under the Exchange Act or listing of the IDSs on the American Stock
Exchange or the Toronto Stock Exchange or listing of the Common Stock on
the Toronto Stock Exchange, nor has the Company received any notification
that the Commission or the American Stock Exchange or the Toronto Stock
Exchange is contemplating terminating such registration or quotation.
(aa) Since November 25, 2003, neither the Company nor any of its
subsidiaries has: (i) taken any of the actions set forth in Section
4(a)(xv); (ii) individually or in the aggregate, suffered any Material
Adverse Effect; or (iii) except as otherwise permitted by this Agreement,
conducted its business and operations other than in the ordinary course of
business and consistent with past practices.
(bb) The books, records and accounts of the Company and its
subsidiaries in reasonable detail accurately and fairly reflect the
transactions and dispositions of the assets of, and the results of
operations of, the Company and its subsidiaries. The Company and each of
its subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in accordance with generally accepted
accounting principles in the United States and to maintain asset
accountability, (iii) access to assets is permitted only in accordance
with management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(cc) The Company and the Guarantors are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are customary in the businesses in which they are engaged
as described in the Prospectus and the Canadian Prospectus; all policies
of insurance and fidelity or surety bonds insuring
11
the Company or the Guarantors or the Company's or the Guarantors'
respective businesses, assets, employees, officers and directors are in
full force and effect, except such as would not have a Material Adverse
Effect; the Company and each of the Guarantors are in compliance with the
terms of such policies and instruments in all material respects.
(dd) Each approval, consent, order, authorization, designation,
declaration or filing of, by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and
delivery by the Company of this Agreement and the consummation of the
transactions herein contemplated required to be obtained or performed by
the Company (except such additional steps as may be required by the
National Association of Securities Dealers, Inc. (the "NASD") or may be
necessary to qualify the Offered Securities for public offering by the
Underwriters under the state securities or Blue Sky laws) has been
obtained or made and is in full force and effect, except for such
approval, consent, order, authorization, designation, declaration or
filing with respect to which failure to obtain or make or be in full force
and effect would not have a material adverse effect.
(ee) To the best of the Company's knowledge, there are no
affiliations with the NASD among the Company's officers, directors or any
stockholder of the Company, except as set forth in the Registration
Statement or otherwise disclosed in writing to the Representatives.
(ff) Except as would not have a Material Adverse Effect, (i) each of
the Company and each of its subsidiaries is in compliance with all rules,
laws and regulation relating to the use, treatment, storage and disposal
of toxic substances and protection of health or the environment
("Environmental Law") which are applicable to its business; (ii) except as
disclosed in the Registration Statement and the Prospectus, neither the
Company nor its subsidiaries has received any notice from any governmental
authority or third party of a claim asserted against it under
Environmental Laws; (iii) each of the Company and each of its subsidiaries
has received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and is in compliance
with all terms and conditions of any such permit, license or approval;
(iv) except as disclosed in the Registration Statement and the Prospectus,
to the Company's knowledge, no facts currently exist that will require the
Company or any of its subsidiaries to make future capital expenditures to
comply with Environmental Laws; and (v) except as disclosed in the
Registration Statement and the Prospectus, no property which is owned and,
to the Company's knowledge, no property which has been owned, or is or has
been leased or occupied, by the Company or its subsidiaries has been
designated as a Superfund site pursuant to the Comprehensive Environmental
Response, Compensation of Liability Act of 1980, as amended (42 U.S.C.
Section 9601, et. seq.) ("CERCLA")or otherwise designated as a
contaminated site under applicable state or local law, and neither the
Company nor any of its subsidiaries has been named as a "potentially
responsible party" under CERCLA.
(gg) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of proceeds thereof as
described in the Prospectus,
12
will not be an "investment company" within the meaning of and subject to
regulation under the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(hh) Neither the Company nor, to the best of the Company's
knowledge, any other person associated with or acting on behalf of the
Company including, without limitation, any director, officer, agent or
employee of the Company or the Guarantors, has, directly or indirectly,
while acting on behalf of the Company or the Guarantors (i) used any
corporate funds for unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity; (ii) made any unlawful
payment to foreign or domestic government officials or employees or to
foreign or domestic political parties or campaigns from corporate funds;
or (iii) violated any provision of the Foreign Corrupt Practices Act of
1977, as amended.
(ii) Except as described in the Prospectus, the Company has not sold
or issued any shares of Common Stock during the six-month period preceding
the date of the Prospectus, including any sales pursuant to Rule 144A
under, or Regulations D or S of, the Securities Act, other than shares
issued pursuant to employee benefit plans, qualified stock options plans
or other employee compensation plans or pursuant to outstanding options,
rights or warrants.
(jj) Each of the Company and the Guarantors has fulfilled its
obligations, if any, under the minimum funding standards of Section 302 of
the U.S. Employee Retirement Income Security Act of 1974 ("ERISA") and the
regulations and published interpretations thereunder with respect to each
"pension plan" as defined in Section 3(2) of ERISA, maintained or
contributed to by the Company or Guarantor, as applicable, in which its
employees employed in the United States are eligible to participate.
Except as would not reasonably be expected to result in a Material Adverse
Effect, (i) each "plan," as defined in Section 3(3) of ERISA, maintained
or contributed to by the Company or Guarantor, as applicable, in which its
employees employed in the United States are eligible to participate, is in
compliance in all material respects with its terms and the presently
applicable provisions of the Internal Revenue Code of 1986, as amended,
and ERISA (and the final regulations promulgated thereunder and published
interpretations thereof by the Internal Revenue Service, the Department of
Labor or by a court of law having jurisdiction over such provisions) and
(ii) no "reportable event" (as defined in Section 4043(c) of ERISA and the
regulations promulgated thereunder), other than those for which notice is
waived by statute or regulation, has occurred with respect to any such
plan.
(kk) Each of the Company, its directors and officers has not
distributed and will not distribute prior to the later of (i) the Firm
Securities Closing Date, or the Option Securities Closing Date, and (ii)
completion of the distribution of the Offered Securities, any offering
material in connection with the offering and sale of the Offered
Securities other than any Preliminary Prospectus, any Canadian Preliminary
Prospectus, the Prospectus, the Canadian Prospectus, the Registration
Statement and other materials, if any, permitted by the Securities Act or
Canadian Securities Laws, as applicable.
13
(ll) The statistical and market and industry-related data included
in the Registration Statement, all the Preliminary Prospectuses, all the
Canadian Preliminary Prospectuses, the Prospectus and the Canadian
Prospectus are based on or derived from sources which the Company believes
to be reliable and accurate or represent the Company's good faith
estimates that are made on the basis of data derived from such sources.
(mm) The Company has not taken or will take any action that would
cause this Agreement or the issuance or sale of the Offered Securities to
violate Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System, in each case as in effect, or as the same may hereafter be
in effect, on each Closing Date.
(nn) Immediately after the consummation of the transactions
contemplated by this Agreement and the Transactions, the fair value and
present fair saleable value of the assets of the Company and its
subsidiaries taken as a whole will exceed its stated liabilities
(including contingent, subordinated, unmatured and unliquidated
liabilities); and (ii) the Company and its subsidiaries taken as a whole
is not, nor will it be, after giving effect to the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby and the Transactions, unable to pay its debts
(contingent or otherwise) as they mature.
(oo) The Company will, as of each Closing Date, be in substantial
compliance with the applicable provisions of the Sarbanes-Oxley Act of
2002 that are effective.
(pp) The only subsidiaries of the Company that are not Guarantors
are [ ] and [ ], neither of which would, individually or in the aggregate,
meet the definition of a "significant subsidiary" as defined in Rule
1-02(w) of Regulation S-X.
(qq) Except as disclosed in the Prospectus and the Canadian
Prospectus, to the knowledge of the Company, after due inquiry, none of
the directors or officers or shareholders of the Company listed under
"Principal Stockholders" in the Prospectus and the Canadian Prospectus is
or has ever been subject to prior criminal or bankruptcy proceedings in
the United States, Canada or elsewhere.
(rr) To the knowledge of the Company, after due inquiry, except as
disclosed in writing to the Underwriters or in the Prospectus and the
Canadian Prospectus, neither the Company nor any subsidiary is a party to
any contract, agreement or understanding with any officer, director,
employee or any other person not dealing at arm's length with the Company
or any subsidiary which is required to be disclosed by applicable Canadian
Securities Laws.
(ss) No stamp duty, registration or documentary taxes, duties or
similar charges are payable under the federal laws of Canada or any of the
Qualifying Provinces in connection with the creation, issuance, sale and
delivery to the underwriters of the Offered Securities or the
authorization, execution, delivery and performance of this Agreement or
the resale of Offered Securities by an Underwriter to U.S. residents.
14
(tt) The French language version of each of the Canadian Preliminary
Prospectus and the Canadian Prospectus, including the financial statements
and other financial data contained therein, is in all material respects a
complete and proper translation of the English language versions thereof,
and is not susceptible of any materially different interpretation with
respect to any material matter contained therein.
3. 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 Offered Securities are subject
to each of the following terms and conditions:
(a) Oral notification that the Registration Statement has become
effective shall have been received by the Representatives and the
Prospectus shall have been timely filed with the Commission in accordance
with Section 4(a) of this Agreement.
(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,
to the knowledge of the Company or the Underwriters, threatened by the
Commission; no order having the effect of ceasing or suspending the
distribution of the Offered Securities shall have been issued, or
proceedings therefor initiated or, to the knowledge of the Company,
threatened by any securities commission, securities regulatory authority
or stock exchange in Canada or the United States; and any requests for
additional information on the part of the Commission (to be included in
the Registration Statement or the Prospectus or otherwise) or any
securities regulatory authority in any of the Qualifying Provinces shall
have been complied with to the satisfaction of the Commission or
applicable securities regulatory authority. If the Company has elected to
rely upon Rule 430A, Rule 430A information previously omitted from the
effective Registration Statement pursuant to Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) within
the prescribed time period and the Company shall have provided evidence
satisfactory to the Underwriters of such timely filing, or a
post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the requirements
of Rule 430A.
(c) The representations and warranties of the Company contained in
this Agreement and in the certificates delivered pursuant to Section 3(d)
shall be true and correct when made and on and as of each Closing Date as
if made on such date. The Company shall have performed in all material
respects all covenants and agreements and satisfied all the conditions
contained in this Agreement required to be performed or satisfied by them
at or before such Closing Date in all material respects.
(d) The Representatives shall have received on each Closing Date a
certificate of the Company, addressed to the Representatives and dated
such Closing Date, and executed by the chief executive or chief operating
officer and the chief financial officer or chief accounting officer of the
Company to the effect that: (i) the representations, warranties and
agreements of the Company in this Agreement were true and correct when
15
made and are true and correct as of such Closing Date; (ii) the Company
has performed in all material respects all covenants and agreements and
satisfied all conditions contained herein in all material respects; (iii)
they have carefully examined the Registration Statement and the Prospectus
and, in their opinion (A) as of the Effective Date, the Registration
Statement and Prospectus did not include any untrue statement of a
material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and (B)
since the Effective Date no event has occurred which should have been set
forth in a supplement or otherwise required an amendment to the
Registration Statement or the Prospectus; and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and, to their knowledge, no proceedings for that purpose have been
instituted, are pending or are contemplated under the Securities Act; and
no order having the effect of ceasing or suspending the distribution of
the Offered Securities has been issued and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company,
are contemplated by any securities commission or securities regulatory
authority in Canada.
(e) The Representatives shall have received, at the time this
Agreement is executed and on each Closing Date a signed letter from
Deloitte & Touche LLP addressed to the Representatives and dated,
respectively, the date of this Agreement and each such Closing Date, in
form and substance reasonably satisfactory to the Representatives
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement, the Prospectus and the Canadian Prospectus.
(f) The Representatives shall have received on each Closing Date
from Simpson Thacher & Bartlett LLP, counsel for the Company, an opinion,
addressed to the Representatives and dated such Closing Date, and stating
in effect that:
(i) The Company and each Guarantor incorporated in Delaware
(the "Delaware Guarantors") has been duly incorporated and is
validly existing and in good standing as a corporation under the
laws of the State of Delaware and has full corporate power and
authority to conduct its business as described in the Registration
Statement and the Prospectus.
(ii) This Agreement has been duly authorized, executed and
delivered by each of the Company and the Delaware Guarantors.
(iii) The Common Shares represented by the Offered Securities
have been duly authorized and, upon payment and delivery in
accordance with this Agreement, the Common Shares will be validly
issued, fully paid and nonassessable.
(iv) The Global IDS Certificate has been duly authorized,
executed and issued by the Company and, assuming due execution of
the Global IDS Certificate by the IDS Transfer Agent, Common Stock
Transfer Agent and the
16
Trustee and upon payment and delivery in accordance with this
Agreement, will constitute a valid and legally binding obligation of
the Company enforceable against the Company in accordance with its
terms.
(v) The Indenture has been duly authorized, executed and
delivered by each of the Company and the Delaware Guarantors and
duly qualified under the Trust Indenture Act and, assuming that the
Indenture (including the Guarantees set forth therein) is the valid
and legally binding obligation of the Trustee, constitutes a valid
and legally binding obligation of the Company and each Delaware
Guarantor, enforceable against the Company and each of the Delaware
Guarantors in accordance with its terms.
(vi) The Notes have been duly authorized, executed and issued
by the Company and, assuming due authentication thereof by the
Trustee and upon payment and delivery in accordance with this
Agreement, will constitute valid and legally binding obligations of
the Company enforceable against the Company in accordance with their
terms and entitled to the benefits of the Indenture.
(vii) The statements made in the Prospectus under the caption
"Description of Capital Stock," insofar as they purport to
constitute summaries of the terms of the Common Stock (including the
Common Shares), constitute accurate summaries of the terms of such
Common Stock in all material respects.
(viii) The statements made in the Prospectus under the caption
"Description of Subordinated Notes," insofar as they purport to
constitute summaries of certain documents referred to therein,
constitute accurate summaries of such documents in all material
respects.
(ix) The statements made in the Prospectus under the caption
"Description of IDSs," insofar as they purport to constitute
summaries of the terms of the IDSs, constitute accurate summaries of
the terms of such IDSs in all material respects.
(x) The statements made in the Prospectus under the caption
"Material U.S. Federal Income Tax Consequences," insofar as they
purport to constitute summaries of matters of United States federal
tax law and regulations or legal conclusions with respect thereto,
constitute accurate summaries of the matters described therein in
all material respects.
(xi) The issue and sale of the IDSs, the Common Shares and the
Notes by the Company, the execution, delivery and performance by the
Company and the Delaware Guarantors of this Agreement and the
execution and delivery of the Indenture by the Company and the
Delaware Guarantors will not breach or result in a default under any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument filed or incorporated by reference as an
exhibit to the Registration Statement, nor will such action violate
the Certificate of Incorporation or By-laws of the Company or any
Delaware Guarantor or any
17
federal or New York statute or the Delaware General Corporation Law
or any rule or regulation that has been issued pursuant to any
federal or New York statute or the Delaware General Corporation Law
or any order known to us issued pursuant to any federal or New York
statute or the Delaware General Corporation Law by any court or
governmental agency or body or court having jurisdiction over the
Company or any Delaware Guarantor or any of their properties.
(xii) No consent, approval, authorization, order, registration
or qualification of or with any federal or New York governmental
agency or body or any Delaware governmental agency or body acting
pursuant to the Delaware General Corporation Law or, to our
knowledge, any federal or New York court or any Delaware court
acting pursuant to the Delaware General Corporation Law is required
for the issue and sale of the IDSs, the Common Shares or the Notes
by the Company and the compliance by the Company and the Delaware
Guarantors with all of the provisions of this Agreement, except for
the registration under the Securities Act and the Exchange Act of
the IDSs, the Common Shares and the Notes, and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the IDSs, Common Shares and the
Notes.
(xiii) To such counsel's knowledge, there are no statutes or
pending or threatened legal or governmental proceedings required to
be described in the Prospectus which are not described as required,
or any contracts or documents of a character required to be
described in the Registration Statement or Prospectus or to be filed
as exhibits to the Registration Statement or incorporated by
reference therein that are not described and filed or incorporated
by reference as required.
(xiv) The Registration Statement has become effective under
the Securities Act and the Prospectus was filed on December [__],
2003 pursuant to Rule 424(b) of the Rules and, to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued or proceeding for that
purpose has been instituted or threatened by the Commission.
(xv) There are no preemptive rights under federal or New York
law or under the Delaware General Corporation Law to subscribe for
or purchase shares of Company capital stock. Except as disclosed in
the Registration Statement, there are no preemptive or other rights
to subscribe for or to purchase, nor any restriction upon the voting
or transfer of, any shares of the Company's capital stock pursuant
to the Company's Certificate of Incorporation or By-laws or any
agreement or other instrument filed or incorporated by reference as
an exhibit to the Registration Statement.
(xvi) The Company is not an "investment company" within the
meaning of and subject to regulation under the Investment Company
Act of 1940, as amended.
18
Simpson Thacher & Bartlett LLP may state that its opinions in
paragraphs (iv), (v) and (vi) are subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. Such counsel may also state
that they have relied as to certain factual matters on information obtained from
public officials, officers of the Company and other sources believed by them to
be responsible and that the signatures on all documents examined by them are
genuine, assumptions which such counsel have not independently verified.
In addition, such counsel shall state, in a separate letter, that it
has not independently verified the accuracy, completeness or fairness of the
statements made or included in the Registration Statement or the Prospectus and
takes no responsibility therefor, except as and to the extent set forth in
paragraphs (vii), (viii), (ix) and (x) above. Such counsel shall also state that
in connection with, and under the circumstances applicable to the offering of
the Securities, it participated in conferences with certain officers and
employees of the Company and the Guarantors, with representatives of Deloitte &
Touche LLP and with counsel to the Company and the Guarantors in the course of
the preparation by the Company and the Guarantors of the Registration Statement
and the Prospectus and also reviewed certain records and documents furnished to
it by the Company and the Guarantors. Based upon such counsel's review of the
Registration Statement and the Prospectus, its reviews made in connection with
the preparation of the Registration Statement and the Prospectus, its
participation in the conferences referred to above, its review of the records
and documents as described above and its understanding of the U.S. federal
securities laws and the experience it has gained in its practice thereunder,
nothing has come to such counsel's attention that causes it to believe that (i)
each of the Registration Statement, as of its effective date, and the
Prospectus, as of its date, was not, on its face, appropriately responsive, in
all material respects, to the requirements of the Securities Act and the Rules,
except that in each case such counsel expresses no belief with respect to the
financial statements or other financial data contained in or omitted from the
Registration Statement or the Prospectus, and (ii) the Registration Statement,
as of its effective date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading or that the Prospectus, as
of its date and as of the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case such counsel expresses no belief with respect to the financial statements
or other financial contained in or omitted from the Registration Statement or
the Prospectus.
(g) The Representatives shall have received on each Closing Date
from Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Representatives, an opinion, addressed to the Representatives in a form
reasonably satisfactory to the Representatives.
To the extent deemed advisable by such counsel, such counsel may
rely as to matters of fact on certificates of responsible officers of the
Company and public officials and on the opinions of other counsel satisfactory
to the Representatives as to matters which are governed by laws other than the
laws of the State of New York, the General Corporation Law of the State of
Delaware and the Federal laws of the United States; provided that such counsel
shall state that
19
in their opinion the Underwriters and they are justified in relying on such
other opinions. Copies of such certificates and other opinions shall be
furnished to the Representatives.
(h) The Representatives shall have received on each Closing Date
from Skadden, Arps, Slate, Meagher & Flom LLP, tax counsel for the
Representatives, an opinion, addressed to the Representatives and dated
such Closing Date, in form and substance reasonably satisfactory to the
Representatives.
(i) The Representatives shall have received on each Closing Date
from Torys LLP, Canadian counsel for the Company, an opinion, addressed to
the Representatives and dated such Closing Date, and stating in effect
that:
(i) All necessary documents have been filed, all requisite
proceedings have been taken and all other legal requirements have
been fulfilled under the laws of each of the Qualifying Provinces in
order to qualify the distribution of the Offered Securities through
investment dealers or brokers who are registered under applicable
legislation of the Qualifying Provinces and who have complied with
the relevant provisions of such applicable legislation.
(ii) Subject to compliance with the prudent investor standards
and general provisions and restrictions of the statutes listed under
the heading "Eligibility for Investment" in the Canadian Prospectus
(and, where applicable, the regulations under those statutes) and,
in certain cases, subject to the satisfaction of additional
requirements relating to investment or lending policies, standards,
procedures or goals and, in certain cases, subject to the filing of
those policies, standards, procedures or goals, the purchase of the
IDSs pursuant to the Offering will not at the date of their purchase
be precluded under those statutes.
(iii) On the date of their issue, the Common Shares if, as and
when listed on a prescribed stock exchange (which currently includes
the Toronto Stock Exchange) and the Notes represented by the IDSs
will be qualified investments under the Income Tax Act (Canada) and
the regulations thereunder for trusts governed by registered
retirement savings plans, registered retirement income funds,
deferred profit sharing plans and registered education savings
plans.
(iv) Subject to the qualifications, assumptions, limitations
and understandings set out therein, the discussions as to matters of
the laws of Canada set out in the Canadian Prospectus under the
heading "Certain Canadian Federal Income Tax Considerations" fairly
describes the principal Canadian federal income tax considerations
as at the date hereof generally applicable under the Income Tax Act
(Canada) to a holder of Common Shares and Notes as represented by
the IDSs who acquires such securities pursuant to the Offering and
who, for the purposes of the Income Tax Act (Canada), is resident in
Canada, holds the Common Shares and Notes represented by the IDSs as
capital property, deals at arm's length with the Company, and is not
affiliated with the Company.
20
(v) The IDSs and the Common Shares have been approved for
listing on the Toronto Stock Exchange, subject only to the filing of
customary documentation.
(vi) Each Canadian Preliminary Prospectus and the Canadian
Prospectus, in both the French and English languages, and the
execution and filing of each Canadian Preliminary Prospectus and the
Canadian Prospectus, in both the French and English languages, with
the regulatory authorities in the Qualifying Provinces have been
approved and authorized by all necessary action on the part of the
Company, and each Canadian Preliminary Prospectus and the Canadian
Prospectus, in both the French and English languages, has been duly
executed by the Company.
(vii) The issue and sale of the IDSs, the Common Shares and
the Notes, and the execution, delivery and performance of this
Agreement, the Indenture and the Notes by the Company, do not and
will not result in a breach of or default under, and do not and will
not create a state of facts which, after notice or lapse of time or
both, will result in a breach of or default under, and do not and
will not conflict with (i) to such counsel's knowledge, any judgment
or award of any court or arbitrator in Canada having jurisdiction
over the Company or any of its subsidiaries or any of their
properties, (ii) any federal laws of Canada or laws of the
Qualifying Provinces applicable to the Company or any of its
subsidiaries or any of their properties, (iii) to such counsel's
knowledge, any contract or other document to which the Company or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is contractually bound and which is governed by the
laws of Canada or any province thereof, other than those which
terminate on the date hereof or in respect of which consents have
been obtained or any breach, default or conflict which will not
result in a Material Adverse Effect or (iv) to such counsel's
knowledge, any judgment, decree or order of any court or
governmental agency or body in Canada having jurisdiction over the
Company or any of its subsidiaries or any of their properties.
(viii) To the best of such counsel's knowledge, no order,
ruling or determination having the effect of ceasing, suspending or
restricting trading in any securities of the Company or the offering
of the Offered Securities in the Qualifying Provinces has been
issued and no proceedings, investigations or inquiries for such
purpose are pending.
(ix) The laws of the Province of Quebec which apply to the
distribution of securities and relate to the use of the French
language (other than those relating to verbal communications) will
have been complied with in respect of the Canadian Prospectus and
forms of order and confirmation (the "Offering Documents") to be
delivered to purchasers in the Province of Quebec in connection with
the sale of the Offered Securities, when issued, to the extent such
purchasers receive a copy of the Offering Documents in the French
language (on the assumption that the Offering Documents constitute
the entire contract for the Offered Securities), provided that the
Offering Documents in the English
21
language may be delivered without delivery of the French language
versions thereof to those physical persons in the Province of Quebec
who have expressly requested in writing to receive such Offering
Documents in the English Language only.
(x) To the best of such counsel's knowledge, there is no
action, suit, proceeding or other investigation, before any court or
before or by any public body or board pending or threatened against,
or involving the assets, properties or businesses of, the Company or
any of its subsidiaries which is required to be disclosed in the
Canadian Prospectus and is not so disclosed or which could
reasonably be expected to have a Material Adverse Effect.
(xi) The Canadian Preliminary Prospectuses and the Canadian
Prospectus and each amendment or supplement thereto (except for the
financial statements and schedules and other financial data included
therein, as to which such counsel expresses no opinion) comply as to
form in all material respects with the requirements of Canadian
Securities Laws; provided, however, that no opinion will be
expressed as to whether any Canadian Preliminary Prospectus or the
Canadian Prospectus constitutes full, true and plain disclosure of
all material facts relating to the Offered Securities.
To the extent deemed advisable by such counsel, such counsel may
rely as to matters of fact on certificates of responsible officers of the
Company and public officials and on the opinions of other counsel satisfactory
to the Representatives as to matters which are governed by laws other than the
laws of the Province of Ontario and the Federal laws of Canada; provided that
such counsel shall state that in their opinion to the Underwriters and they are
justified in relying on such other opinions. Copies of such certificates and
other opinions shall be furnished to the Representatives.
(j) The Representatives shall have received on each Closing Date
from McCarthy Tetrault LLP, Canadian counsel for the Representatives, an
opinion, addressed to the Representatives and dated such Closing Date, in
form and substance reasonably satisfactory to the Representatives.
To the extent deemed advisable by such counsel, such counsel may
rely as to matters of fact on certificates of responsible officers of the
Company and public officials and on the opinions of other counsel satisfactory
to the Representatives as to matters which are governed by laws other than the
laws of the provinces of British Columbia, Alberta, Ontario and Quebec and the
laws of Canada applicable therein; provided that such counsel shall state that
in their opinion to the Underwriters and they are justified in relying on such
other opinions. Copies of such certificates and other opinions shall be
furnished to the Representatives.
(k) The Representatives shall have received copies of the Lock-up
Agreements executed by each entity or person listed on Schedule III
hereto.
(l) The Representatives shall have received on the Firm Securities
Closing Date a certificate of the Company, addressed to the
Representatives and dated such Closing
22
Date, and executed by the chief financial officer of the Company,
reflecting the calculation of the Working Capital Adjustment (as defined
in the Prospectus).
(m) The Representatives shall have received on the Firm Securities
Closing Date a certificate of the Company, addressed to the
Representatives and dated such Closing Date, and executed by the chief
financial officer of the Company, substantially in the form attached as
Exhibit B hereto.
(n) The Indenture shall have been duly executed and delivered by the
Company, the Guarantors and the Trustee, and the Notes shall have been
duly executed and delivered by the Company and duly authenticated by the
Trustee.
(o) At least a majority of the Company's outstanding $100 million in
principal amount of 11-1/4% senior subordinated notes due 2009 shall have
been validly tendered and not withdrawn, and the aggregate consideration
to be paid for such tendered notes shall not exceed $[ ] million.
(p) On or prior to the Firm Securities Closing Date and simultaneous
with closing, the Company shall have duly and validly entered into the
Credit Agreement and repurchased shares of Common Stock as contemplated by
the Share Repurchase pursuant to legally enforceable terms.
(q) All conditions to closing the Transactions shall have been
satisfied.
(r) There shall not have been any announcement by any "nationally
recognized statistical rating organization," as defined for purposes of
Rule 436(g) under the Securities Act, that (A) it is downgrading its
rating assigned to any debt securities of the Company or (B) it is
reviewing its rating assigned to any debt securities of the Company with a
view to possible downgrading or with negative implications.
(s) The IDSs shall have been approved for listing on the American
Stock Exchange and the Toronto Stock Exchange, and the Common Shares shall
have been approved for listing on the Toronto Stock Exchange, subject in
each case only to official notice of issuance and filing of customary
documents.
(t) The Company shall have furnished or caused to be furnished to
the Representatives such further certificates or documents as the
Representatives shall have reasonably requested.
4. Covenants of the Company.
(a) The Company covenants and agrees as follows:
(i) 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 applicable, such earlier time
as may be required by the Rules.
23
(ii) The Company shall promptly advise the
Representatives in writing (A) when any post-effective
amendment to the Registration Statement shall have become
effective or any supplement to the Prospectus shall have been
filed, (B) of any request by the Commission for any amendment
of the Registration Statement or the Prospectus or for any
additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or
suspending the use of any Preliminary Prospectus or the
institution or threatening of any proceeding for that purpose
and (D) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered
Securities 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 their 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 reasonable best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(iii) If, at any time when a Prospectus relating to
the Offered Securities 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 an amendment or supplement which shall correct
such statement or omission or an amendment which shall effect
such compliance.
(iv) 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 75 days
if such 12-month period coincides with the Company's fiscal
year), an earning 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.
(v) 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. If applicable,
24
the copies of the Registration Statement and Prospectus and
each amendment and supplement thereto furnished to the
Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(vi) The Company shall, as soon as possible following
the execution of this Agreement, file the Canadian Prospectus
with the applicable securities regulatory authority in each of
the Qualifying Provinces and will have taken all other steps
and proceedings that may be necessary in order to qualify the
Offered Securities for distribution in each of the Qualifying
Provinces by the Underwriters and other persons who are
registered in a category permitting them to distribute the
Offered Securities under the Canadian Securities Laws and who
comply with the Canadian Securities Laws.
(vii) Until the "distribution" (for purposes of
Canadian Securities Laws) of the Offered Securities in the
Qualifying Provinces is completed, the Company shall promptly
take, or cause to be taken, all additional steps and
proceedings that may from time to time be required under the
Canadian Securities Laws to continue to qualify the
distribution of the Offered Securities in each of the
Qualifying Provinces or, in the event that the Offered
Securities have, for any reason, ceased so to qualify, to so
qualify again the Offered Securities, as applicable, for
distribution in each of the Qualifying Provinces.
(viii) The Company shall advise the Representatives,
promptly after receiving notice thereof, of the time when the
Canadian Prospectus and any Canadian Supplementary Material
has been filed and receipts have been obtained and will
provide evidence satisfactory to the Representatives of each
filing and the issuance of receipts.
(ix) The Company shall advise the Representatives,
promptly after receiving notice or obtaining knowledge, of:
(A) the issuance by the applicable securities commission or
regulatory authority in any of the Qualifying Provinces (a
"Canadian Securities Commission") of any order suspending or
preventing the use of a Canadian Preliminary Prospectus, the
Canadian Prospectus or any Canadian Supplementary Material;
(B) the suspension of the qualification of the Offered
Securities for offering or sale in any of the Qualifying
Provinces; (C) the institution, threatening or contemplation
of any proceeding for any of those purposes; or (D) any
requests made by any Canadian Securities Commission for
amending or supplementing the Canadian Prospectus or for
additional information, and will use its reasonable best
efforts to prevent the issuance of any such order and, if any
such order is issued, to obtain the withdrawal of the order
promptly. The Company shall not file any amendment or
supplement to the Canadian Prospectus unless the Company has
furnished the Representatives a copy for its review prior to
filing. The Company shall use its reasonable best efforts to
prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
25
(x) If, at any time when a Canadian Prospectus
relating to the Offered Securities is required to be delivered
under the Canadian Securities Laws, any event occurs as a
result of which the Canadian 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 Canadian Prospectus to
comply with the Canadian Securities Laws, the Company promptly
shall prepare and file with the securities regulatory
authorities in the Qualifying Provinces an amendment or
supplement which shall correct such statement or omission or
an amendment which shall effect such compliance.
(xi) The Company shall furnish to the
Representatives, without charge, a signed copy of the Canadian
Prospectus and the Canadian Supplementary Material, if any, in
the English language and, for documents in respect of which a
translated version must be filed pursuant to applicable
Canadian Securities Laws, French language and a signed copy of
any other document required to be filed by the Company under
the Canadian Securities Laws in connection with the
distribution of the Offered Securities as contemplated by this
Agreement prior to the filing of the Canadian Prospectus, the
Canadian Supplementary Material and the other documents,
respectively.
(xii) The Company shall cause to be delivered to the
Underwriters, at those delivery points as the Underwriters
reasonably request, as soon as possible and in any event no
later than 9:00 a.m. (Toronto time) on December [ ], 2003, of
the Canadian Prospectus ([ ] commercial copies in English and
[ ] commercial copies in French) and thereafter from time to
time during such time as the distribution of the Offered
Securities continues in the Qualifying Provinces, as many
commercial copies of the Canadian Prospectus in the English
language and French language as the Underwriters may
reasonably request. The Company shall similarly cause to be
delivered to the Underwriters, at those delivery points as the
Underwriters may reasonably request, commercial copies of any
Canadian Supplementary Material required to be delivered to
purchasers or prospective purchasers of the Offered Securities
in the Qualifying Provinces. The Company has previously
delivered to the Underwriters copies of a Canadian Preliminary
Prospectus, approved, signed and certified as required by the
Canadian Securities Laws. Each delivery of a Canadian
Preliminary Prospectus, the Canadian Prospectus or any
Canadian Supplementary Material shall have constituted or
shall constitute, as the case may be, consent by the Company
to use by the Underwriters and members of their selling group
(if any) of those documents in connection with the
distribution of the Offered Securities for sale in all of the
Qualifying Jurisdictions, subject to the Canadian Securities
Laws.
(xiii) The Company shall cooperate with the
Representatives and their counsel in endeavoring to qualify
the Offered Securities for offer and sale in connection with
the offering under the laws of such jurisdictions as the
Representatives may designate and shall maintain such
qualifications in effect so
26
long as required for the distribution of the Offered
Securities; provided, however, that the Company shall not 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 in
connection with this paragraph (xiii).
(xiv) The Company, during the period when the
Prospectus is required to be delivered under the Securities
Act and the Rules or the Exchange Act, will file all reports
and other documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act within
the time periods required by the Exchange Act and the
regulations promulgated thereunder.
(xv) Without the prior written consent of CIBC World
Markets Corp., for a period of 180 days after the date of this
Agreement, the Company shall not issue, sell or register with
the Commission (other than on Form S-8 or on any successor
form), or otherwise dispose of, directly or indirectly, any
equity securities of the Company (or any securities
convertible into, exercisable for or exchangeable for equity
securities of the Company), except for the issuance of the
Common Shares pursuant to the Registration Statement and the
issuance of shares of Common Stock pursuant to the Company's
existing stock option plan or bonus plan and any other
issuances of equity securities as described in the
Registration Statement and the Prospectus.
(xvi) From the date of this Agreement to the Firm
Securities Closing Date, except as otherwise contemplated by
this Agreement, the Company shall, and shall cause its
subsidiaries to, conduct their respective businesses only in
the ordinary and usual course of business and consistent with
past practices, and there shall be no material changes in the
assets, properties, condition, financial or otherwise, or in
the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as a
whole. The Company shall, and shall cause its subsidiaries to,
preserve intact the business organization of the Company and
its subsidiaries and to preserve their current goodwill and
relationships with customers, suppliers and other persons with
whom they have significant business relations and to maintain
the cash management practices of the Company and its
subsidiaries in accordance with past practices. Without
limiting the generality of the foregoing, and, except as
otherwise expressly provided in this Agreement, prior to the
Firm Securities Closing Date, without the prior written
consent of the Representatives, the Company shall not, and
shall cause its subsidiaries not to, directly or indirectly,
make any payment to, incur or assume any obligation of, or
transfer or sell any assets to, the existing equity owners of
the business, except as described in the Prospectus; provided,
that the Company may pay any management fees described in the
Prospectus to the extent such management fees are included in
the Working Capital Adjustment (as defined in the Prospectus)
as current liabilities.
27
(xvii) Unless otherwise agreed upon in writing
between the Company and the Representatives, the Company shall
undertake to redeem, upon the earliest date upon which such
redemption may be made, [$__ million] aggregate principal
amount of the Company's 11-1/4% Senior Subordinated Notes due
2009 which were not tendered to the Company pursuant to the
tender offer and consent solicitation which the Company
commenced on October 22, 2003 with respect to such notes. From
and after the Closing Date, the Company shall retain
sufficient cash and cash equivalents necessary to fulfill such
redemption obligations.
(xviii) On or before completion of this offering, the
Company shall make all filings required under applicable
securities laws and by the American Stock Exchange (including
any required registration under the Exchange Act).
(xix) On or before completion of this offering, the
Company shall make all filings required under (i) the Canadian
Securities Laws in connection with the distribution of the
Offered Securities as contemplated by this Agreement and (ii)
by the Toronto Stock Exchange in connection with the listing
of the Common Shares and IDSs.
(xx) Prior to the Closing Date, the Company will
issue no press release or other communications directly or
indirectly and hold no press conference with respect to the
Company, the condition, financial or otherwise, or the
earnings, business affairs or business prospects of any of
them, or the offering of the Offered Securities without the
prior written consent of the Representatives unless in the
judgment of the Company and its counsel, and after
notification to the Representatives, such press release or
communication is required by law.
(xxi) The Company will, and will cause its
subsidiaries to, apply the net proceeds from the offering of
the Offered Securities in the manner set forth under "Use of
Proceeds" in the Prospectus.
(xxii) The Company will use its reasonable best
efforts in cooperation with the Underwriters to permit the
Offered Securities to be eligible for clearance and settlement
through DTC.
(xxiii) The Company will use its reasonable best
efforts to do and perform all things required to be done and
performed by it under this Agreement, the Indenture, the Notes
and any other related agreements prior to or after each
Closing Date and to satisfy all conditions precedent on its
part to the obligations of the Underwriters to purchase and
accept delivery of the Offered Securities.
(xxiv) The Company shall cause Gowling Lafleur
Henderson LLP to deliver to the Representatives opinions,
dated the date of the filing of the French language versions
of each Canadian Preliminary Prospectus, the Canadian
Prospectus and any Canadian Supplementary Material (excluding
any ancillary materials for which no translation is required
pursuant to applicable Canadian Securities Laws), to the
effect that the French language version of each such
28
prospectus or document (other than the financial statements
and other financial data contained therein or omitted
therefrom), is in all material respects a reasonable and
proper translation of the English language versions thereof
and is not susceptible of any materially different
interpretation with respect to any material matter contained
therein.
(xxv) The Company shall cause Deloitte & Touch LLP to
deliver to the Representatives opinions, dated the date of the
filing of the French language versions of each Canadian
Preliminary Prospectus, the Canadian Prospectus and any
Canadian Supplementary Material (excluding any ancillary
materials for which no translation is required pursuant to
applicable Canadian Securities Laws), to the effect that the
financial statements and other financial data contained in the
French language version of each such prospectus or document is
in all material respects a complete and proper translation of
the English language versions thereof and is not susceptible
of any materially different interpretation with respect to any
material matter contained therein.
(xxvi) The Company will use its best efforts to
ensure that each of Lawrence E. Honig, Kenneth R. Frick and
Janet L. Steinmayer comply with the conditions contained in
the Lock-up Agreement signed by such individual substantially
in the form of Exhibit A hereto.
(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
incident to the public offering of the Offered Securities 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; the
preparation, printing, filing and distribution of each Canadian
Preliminary Prospectus, the Canadian Prospectus and any Canadian
Supplementary Material; (ii) the preparation and delivery of
certificates for the Offered Securities to the Underwriters; (iii) the
registration or qualification of the Offered Securities for offer and
sale under the securities or Blue Sky laws of the various jurisdictions
referred to in Section 4(a)(xiii), including the reasonable 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, each Canadian Preliminary Prospectus, the
Prospectus, the Canadian Prospectus and all amendments or supplements
to the foregoing, 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 Offered Securities by the
Underwriters or by dealers to whom Offered Securities may be sold; (v)
the filing fees of the NASD in connection with its review of the terms
of the public offering and reasonable fees and disbursements of counsel
for the Underwriters in connection with such review; (vi) inclusion of
the IDSs for listing on the American Stock Exchange and
29
the Toronto Stock Exchange and the Common Shares for listing on the
Toronto Stock Exchange; and (vii) all transfer taxes, if any, with
respect to the sale and delivery of the Offered Securities by the
Company to the Underwriters. Subject to the provisions of Section 7,
the Underwriters agree to pay, whether or not the transactions
contemplated hereby are consummated or this Agreement is terminated,
all costs and expenses incident to the performance of the obligations
of the Underwriters under this Agreement not payable by the Company
pursuant to the preceding sentence, including, without limitation, all
of the fees and disbursements of counsel for the Underwriters (except
as set forth in clause (iii) above).
5. Indemnification.
(a) The Company agrees 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 any
Canadian Securities Laws, the Securities Act or any of its Rules, the
Exchange Act or any rule or regulation promulgated thereunder, or other
Federal, state or provincial 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 Canadian Preliminary
Prospectus, the Canadian Prospectus, any Canadian Supplementary
Material, 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, in the light of the circumstances under
which they were made 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 Offered Securities
to any person by such Underwriter if such untrue statement or omission
or alleged untrue statement or omission was made in any Canadian
Preliminary Prospectus, the Canadian Prospectus, any Canadian
Supplementary Material, any Preliminary Prospectus, the Registration
Statement or the Prospectus, or such amendment or supplement thereto or
in any Blue Sky Application, in reliance upon and in conformity with
information furnished in writing to the Company by the Representatives
on behalf of such Underwriter specifically for use therein; and
provided, further, that with respect to any such untrue statement in or
omission from the Preliminary Prospectus and any Canadian Preliminary
Prospectus, the indemnity agreement contained in this Section 5(a)
shall not inure to the benefit of any such Underwriter to the extent
that the sale to the person asserting any such loss, claim, damage,
liability or action was an initial resale by such Underwriter and any
such loss, claim, damage, liability or action of or with respect to
such Underwriter has been determined by final and non-appealable
judgment that: (w) the Company had previously furnished copies of the
Prospectus or any Canadian Preliminary Prospectus, as applicable, to
the Representatives, (x) delivery of the Prospectus or any Canadian
Preliminary Prospectus, as applicable, was required to be made to such
person, (y) the
30
untrue statement or omission contained in the Preliminary Prospectus or
any Canadian Preliminary Prospectus was corrected in the Prospectus or
any Canadian Preliminary Prospectus, as applicable, and (z) a copy of
the Prospectus or any Canadian Preliminary Prospectus, as applicable,
was not sent or given to such person at or prior to the written
confirmation of the sale of such Offered Securities to such person.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter agrees to indemnify and hold harmless the
Company, and 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 or the Canadian
Prospectus, against any losses, claims, damages or liabilities to which
such party may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Canadian
Preliminary Prospectus, the Canadian Prospectus, any Canadian
Supplementary Material, any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
any Preliminary Prospectus, the Registration Statement, the Prospectus,
any Canadian Preliminary Prospectus or the Canadian Prospectus or any
such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter
through the Representatives expressly for use therein; provided,
however, that the obligation of each Underwriter to indemnify the
Company (including any controlling person, director or officer thereof)
shall be limited to the net proceeds received by the Company from such
Underwriter. This indemnity agreement will be in addition to any
liability which the underwriters may otherwise have.
(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 5(a) or
5(b) shall be available to any party who shall fail to give notice as
provided in this Section 5(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 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
31
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 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 been advised by counsel that there may be
one or more legal defenses available to it which are different from or
in addition to those available to the indemnifying party (in which case
the indemnifying parties shall not have the right to direct the defense
of such action on behalf of the indemnified party) 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. It is
understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm of attorneys
for all such indemnified parties. An indemnifying party shall not be
liable for any settlement of any action, suit, and proceeding or claim
effected without its written consent, which consent shall not be
unreasonably withheld or delayed.
6. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 5(a) or 5(b) is due in accordance with its terms but for any reason is
unavailable to or insufficient to hold harmless an indemnified party in respect
to any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate losses,
liabilities, claims, damages and expenses (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) incurred by
such indemnified party, as incurred, in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Offered Securities
pursuant to this Agreement or, if such allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company on the one
hand and the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations. The Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 6 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. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or
32
any claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission. Notwithstanding the provisions of this Section 6,
no Underwriter (except as may be provided in the Agreement Among Underwriters)
shall be required to contribute any amount in excess of the amount by which the
total price at which the Offered Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of damages which
such underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 6,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, and 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, shall have the same rights to
contribution as the Company. 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 6, 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 6. No party
shall be liable for contribution with respect to any action, suit, proceeding or
claim settled without its written consent. The Underwriters' obligations to
contribute pursuant to this Section 6 are several in proportion to their
respective underwriting commitments and not joint.
7. Termination.
(a) This Agreement may be terminated with respect to the
Offered Securities to be purchased on a Closing Date by the
Representatives by notifying the Company at any time at or before a
Closing Date in the absolute discretion of the Representatives if: (i)
there has occurred any material adverse change in the securities
markets or any event, act or occurrence that has materially disrupted,
or in the opinion of the Representatives, will in the future materially
disrupt, the securities markets or 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 or Canada is such as to make it, in the judgment of
the Representatives, inadvisable or impracticable to market the Offered
Securities or enforce contracts for the sale of the Offered Securities;
(ii) there has occurred any outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the
financial markets of the United States and Canada is such as to make
it, in the judgment of the Representatives, inadvisable or
impracticable to market the Offered Securities or enforce contracts for
the sale of the Offered Securities; (iii) trading in the Offered
Securities or any securities of the Company has been suspended or
materially limited by the Commission or trading generally on the New
York Stock Exchange, Inc., the American Stock Exchange, Inc. or the
Nasdaq National Market or Toronto Stock Exchange has been suspended or
materially 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 any of said exchanges or by such
system or
33
by order of the Commission, the National Association of Securities
Dealers, Inc., or any other U.S. or Canadian governmental or regulatory
authority; or (iv) a banking moratorium has been declared by the State
of New York or any state or Federal authority of the United States or
any national Canadian authority; or (v) in the judgment of the
Representatives, there has been, since the time of execution of this
Agreement or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the assets,
properties, condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the Company and
its subsidiaries considered as a whole, whether or not arising in the
ordinary course of business.
(b) If this Agreement is terminated pursuant to any of its
provisions, the Company shall not be under any liability to any
Underwriter, and no Underwriter shall be under any liability to the
Company 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 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 reasonable fees and disbursements of their counsel) incurred by
them in connection with the proposed purchase and sale of the Offered
Securities or in contemplation of performing their obligations
hereunder and (z) no Underwriter who shall have failed or refused to
purchase the Offered Securities agreed to be purchased by it under this
Agreement, without some reason sufficient hereunder to justify
cancellation or termination of its obligations under this Agreement,
shall be relieved of liability to the Company or to the other
Underwriters for damages occasioned by its failure or refusal.
8. Substitution of Underwriters. If any Underwriter shall
default in its obligation to purchase on any Closing Date the Offered Securities
agreed to be purchased hereunder on such Closing Date, the Representatives shall
have the right, within 36 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to purchase such
Offered Securities on the terms contained herein. If, however, the
Representatives shall not have completed such arrangements within such 36-hour
period, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Underwriters to purchase such Offered Securities on such terms. If, after giving
effect to any arrangements for the purchase of the Offered Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Company as
provided above, the aggregate number of Offered Securities which remains
un-purchased on such Closing Date does not exceed one eleventh of the aggregate
number of all the Offered Securities that all the Underwriters are obligated to
purchase on such date, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Offered Securities which
such Underwriter agreed to purchase hereunder at such date and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the number of Offered Securities which such Underwriter agreed to purchase
hereunder) of the Offered Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default. 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 seven days in
order to effect any necessary changes and arrangements (including any necessary
amendments or supplements to the Registration Statement or Prospectus or any
other documents), and the Company agrees to
34
file promptly any amendments to the Registration Statement or the Prospectus
and/or the Canadian Prospectus which in the opinion of the Company and the
Underwriters and their counsel may thereby be made necessary.
If, after giving effect to any arrangements for the purchase
of the Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided above, the aggregate number of such
Offered Securities which remains un-purchased exceeds 10% of the aggregate
number of all the Offered Securities to be purchased at such date, then this
Agreement, or, with respect to a Closing Date which occurs after the first
Closing Date, the obligations of the Underwriters to purchase and of the
Company, as the case may be, to sell the Option Securities to be purchased and
sold on such date, shall terminate, without liability on the part of any
non-defaulting Underwriter to the Company, and without liability on the part of
the Company, except as provided in Sections 4(b), 5, 6 and 7. The provisions of
this Section 8 shall not in any way affect the liability of any defaulting
Underwriter to the Company or the non-defaulting Underwriters arising out of
such default. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section 8 with like effect as if such person had
originally been a party to this Agreement with respect to such Offered
Securities.
9. Miscellaneous. The respective agreements, representations,
warranties, indemnities and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or the Company or any of their respective officers,
directors or controlling persons referred to in Sections 5 and 6 hereof, and
shall survive delivery of and payment for the Offered Securities. In addition,
the provisions of Sections 4(b), 5, 6 and 7 shall survive the termination or
cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters, the Company and their respective successors and assigns, and, to
the extent expressed herein, for the benefit of persons controlling any of the
Underwriters, or the Company, 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 Offered Securities 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 CIBC World Markets Corp., 417 5th
Avenue, 2nd Floor, New York, New York 10016 Attention: ________, with a copy to
Skadden, Arps, Slate, Meagher & Flom LLP and (b) if to the Company, to its agent
for service as such agent's address appears on the cover page of the
Registration Statement with a copy to Simpson Thacher & Bartlett LLP.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
35
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.
Please confirm that the foregoing correctly sets forth the
agreement among us.
Very truly yours,
VOLUME SERVICES AMERICA HOLDINGS, INC.
By _______________________________________
Name:
Title:
EVENTS CENTER CATERING, INC.
By _______________________________________
Name:
Title:
SERVICE AMERICA CONCESSIONS CORPORATION
By _______________________________________
Name:
Title:
SERVICE AMERICA CORPORATION
By _______________________________________
Name:
Title:
SERVICE AMERICA CORPORATION OF WISCONSIN
By _______________________________________
Name:
36
Title:
SERVICE AMERICA OF TEXAS, INC.
By _______________________________________
Name:
Title:
SERVO-KANSAS, INC.
By _______________________________________
Name:
Title:
SVM OF TEXAS, INC.
By _______________________________________
Name:
Title:
VOLUME SERVICES, INC. (Delaware)
By _______________________________________
Name:
Title:
VOLUME SERVICES, INC. (Kansas)
By _______________________________________
Name:
Title:
VOLUME SERVICES AMERICA INC.
By _______________________________________
Name:
Title:
37
Confirmed:
CIBC WORLD MARKETS CORP.
UBS SECURITIES LLC
RBC DAIN RAUSCHER INC.
MCDONALD INVESTMENTS INC., A KEYCORP COMPANY
BMO NESBITT BURNS INC.
Acting severally on behalf of itself and as representative of the several
Underwriters named in Schedule I annexed hereto.
By CIBC WORLD MARKETS CORP.
By ______________________________________________
Name:
Title:
By UBS SECURITIES LLC
By ______________________________________________
Name:
Title:
By RBC DAIN RAUSCHER INC.
By ______________________________________________
Name:
Title:
By MCDONALD INVESTMENTS INC., A KEYCORP COMPANY
By ______________________________________________
Name:
Title:
38
By BMO NESBITT BURNS INC.
By ______________________________________________
Name:
Title:
39
SCHEDULE I
Number of
Firm Securities
to
Name Be Purchased
- ---- ------------
CIBC World Markets Corp.
UBS Securities LLC
RBC Dain Rauscher Inc.
McDonald Investments Inc., A KeyCorp Company
BMO Nesbitt Burns Inc.
Robert W. Baird & Co. Incorporated
U.S. Bancorp Piper Jaffray Inc.
TD Securities (USA) Inc.
Wells Fargo Securities, LLC
Morgan Joseph & Co. Inc.
-------------
Total
Sch I-1
SCHEDULE II
Subsidiary Guarantors
Events Center Catering, Inc.
Service America Concessions Corporation
Service America Corporation
Service America Corporation of Wisconsin
Service America of Texas, Inc.
Servo-Kansas, Inc.
SVM of Texas, Inc.
Volume Services, Inc. (Delaware)
Volume Services, Inc. (Kansas)
Volume Services America, Inc.
Sch II-1
SCHEDULE III
Lock-up Signatories
BCP Volume L.P.
BCP Offshore Volume L.P.
VSI Management Direct L.P.
Recreational Services L.L.C.
Lawrence E. Honig
Kenneth R. Frick
Janet L. Steinmayer
Sch III-1
Exhibit 1.1
Exhibit A
LOCKUP AGREEMENT
[ ], 2003
CIBC World Markets Corp.
UBS Securities LLC
as Representatives of the several Underwriters
c/o CIBC World Markets Corp.
417 5th Avenue, 2nd Floor
New York, New York 10016
Re: Public Offering of Income Deposit
Securities of Volume Services America
Holdings, Inc.
Ladies and Gentlemen:
The undersigned understands that Volume Services America Holdings, Inc., a
Delaware corporation (the "Company"), has filed a Registration Statement on Form
S-1 (No. 333-103169) with the Securities and Exchange Commission (the
"Commission") that was declared effective by the Commission on [ ], 2003 for the
registration of [ ] Income Deposit Securities (the "IDSs") (including [ ] IDSs
subject to an over-allotment option on the part of the Underwriters) (the
"Offering"). Each IDS represents one share of common stock, par value $0.01 per
share, of the Company (the "Common Stock") and $ in aggregate principal amount
of the [ ]% subordinated notes due 2013 of the Company (the "Notes"). The
undersigned further understands that you, as representatives, propose to enter
into an underwriting agreement on behalf of the several underwriters named in
Schedule I to such agreement (collectively, the "Underwriters"), with the
Company in connection with the Offering.
In consideration of the agreement by the Underwriters to offer and sell
the IDSs, and of other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the undersigned agrees, for the
benefit of the Company, you and the other Underwriters, that should the Offering
be effected the undersigned will not, without your prior written consent,
directly or indirectly, make any offer, sale, assignment, transfer, encumbrance,
contract to sell, grant of an option to purchase or other disposition of any
shares of Common Stock or IDSs, or any options or warrants to purchase any
shares of Common Stock or IDSs, or any securities convertible into, exchangeable
for or that represent the right to receive shares of Common Stock or IDSs,
beneficially owned (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) by the undersigned on the date hereof or
hereafter acquired for a period of 180 days subsequent to the date of the
Underwriting Agreement, other than any shares of Common Stock or IDSs to be sold
in the Offering, or transferred as a gift or gifts to his or her immediate
family or to a trust the beneficiary of which is exclusively the undersigned
and/or a member or members of his or her immediate family (provided that any
donee thereof agrees in writing to be bound by the terms hereof). For the
purposes of this
paragraph, "immediate family" shall mean spouse, lineal descendant, father,
mother, brother or sister of the transferor.
The parties acknowledge that the agreement of the undersigned shall not
apply to any offer, sale, assignment, transfer, encumbrance, contract to sell,
grant of an option to purchase or other disposition of any of the partnership or
membership interests of the undersigned, whether now held or hereafter acquired,
in the partnerships or limited liability companies that own the Common Stock of
the Company, back to the partnerships or to the current members or partners of
the partnerships or limited liability companies.
The undersigned, whether or not participating in the Offering, confirms
that he, she or it understands that the Underwriters and the Company will rely
upon the representations set forth in this agreement in proceeding with the
Offering. This agreement shall be binding on the undersigned and his, her or its
respective successors, heirs, personal representatives and assigns. The
undersigned agrees and consents to the entry of stop transfer instructions with
the Company's transfer agent against the transfer of any shares of Common Stock
or IDSs or securities convertible into or exchangeable or exercisable for Common
Stock or IDSs held by the undersigned except in compliance with this agreement.
[SIGNATURE PAGE FOLLOWS]
2
Exhibit 1.1
Very truly yours,
Dated: , 2003
-------------------------
Signature
-----------------------------
Printed Name and Title (if applicable)