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EXHIBIT 1.2
FORM OF UNDERWRITING AGREEMENT
2,000,000 Shares
AMERICAN CLASSIC VOYAGES CO.
COMMON STOCK
UNDERWRITING AGREEMENT
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February 15, 2000
Donaldson, Lufkin & Jenrette
Securities Corporation
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Craig-Hallum Capital Group, Inc.
As Representatives of the several
Underwriters named in Schedule A hereto
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
American Classic Voyages Co., a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the several underwriters named in Schedule I
hereto (the "UNDERWRITERS") 2,000,000 shares of its common stock, par value $.01
per share (the "FIRM SECURITIES"). The Company also proposes to issue and sell
to the several Underwriters not more than an additional 300,000 shares of its
common stock, par value $.01 per share (the "ADDITIONAL SECURITIES"), if
requested by the Underwriters as provided in Section 2 hereof. The Firm
Securities and the Additional Securities are hereinafter referred to
collectively as the "SECURITIES". The shares of common stock of the Company to
be outstanding after giving effect to the sales contemplated hereby are
hereinafter referred to as the "COMMON STOCK".
SECTION 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3 (No. 333-94771) covering the
registration under the Securities Act of 1933, as amended and the rules and
regulations of the Commission thereunder (the "ACT"), up to $250,000,000 of (i)
Common Stock, (ii) Preferred Stock of the Company, (iii) subordinated debt
securities of the Company, (iv) preferred securities of the Trust, and (v)
guarantees and back-up undertakings of the Company in connection with the
preferred securities of the Trust, of which the Securities are a part. Such
registration statement, as amended, has been declared effective by the
Commission. Such registration statement, as amended through the date of this
Agreement, including all documents incorporated or deemed to be incorporated
therein by reference, as from time to time amended or supplemented pursuant to
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder (collectively, the
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"EXCHANGE ACT"), or otherwise, are herein collectively referred to as the
"REGISTRATION STATEMENT". The prospectus in the form first used to confirm sales
of Securities (including the information contained in any prospectus supplement
relating to the Securities and any documents or information incorporated or
deemed to be incorporated by reference into such prospectus) are hereinafter
collectively referred to as the "PROSPECTUS". All references in this Agreement
to financial statements and schedules and other information which is
"contained," "included," "described" or "stated" in the Registration Statement
or the Prospectus (and all references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be. The terms "supplement,"
"supplemented," "amendment," "amend" and "amended" as used in this Agreement
with respect to the Registration Statement or the Prospectus shall include all
documents filed by the Trust or the Company with the Commission pursuant to the
Exchange Act that are incorporated or deemed to be incorporated therein by
reference.
Concurrently with the offering of the Securities, the Company is
offering 2,000,000 trust preferred securities (excluding 300,000 preferred
securities available to cover over-allotments) of AMCV Capital Trust I pursuant
to a separate underwriting agreement. This offering and the offering of trust
preferred securities are not dependent on each other.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a price per Security
of $23.57 (the "PURCHASE PRICE"), the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule A hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Securities and the Underwriters shall have the right to
purchase, severally and not jointly, up to 300,000 Additional Securities from
the Company at the Purchase Price. Additional Securities may be purchased solely
for the purpose of covering over-allotments made in connection with the offering
of the Firm Securities. The Underwriters may exercise their right to purchase
Additional Securities in whole or in part from time to time by giving written
notice thereof to the Company within 30 days after the date of this Agreement.
You shall give any such notice on behalf of the Underwriters and such notice
shall specify the aggregate number of Additional Securities to be purchased
pursuant to such exercise and the date for payment and delivery thereof, which
date shall be a business day (i) no earlier than two business days after such
notice has been given (and, in any event, no earlier than the Closing Date (as
hereinafter defined)) and (ii) no later than ten business days after such notice
has been given. If any Additional Securities are to be purchased, each
Underwriter, severally and not jointly, agrees to purchase from the Company the
number of Additional Securities (subject to such adjustments to eliminate
fractional shares as you may determine) which bears the same proportion to the
total number of Additional Securities to be purchased from the Company as the
number of Firm Securities set
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forth opposite the name of such Underwriter in Schedule I bears to the total
number of Firm Securities.
The Company hereby agrees not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
(ii) enter into any swap or other arrangement that transfers all or a portion of
the economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Common Stock, or such other securities, in
cash or otherwise), except to the Underwriters pursuant to this Agreement, for a
period of 90 days after the date of the Prospectus without the prior written
consent of Donaldson, Lufkin & Jenrette Securities Corporation. Notwithstanding
the foregoing, during such 90-day period (i) the Company may issue stock or
grant stock options pursuant to the Company's existing stock option and stock
award plans; and (ii) the Company may issue shares of Common Stock upon the
exercise of an option or warrant or the conversion of a security outstanding on
the date hereof. The Company also agrees not to file any registration statement
with respect to any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock for a period of 90 days after the
date of the Prospectus without the prior written consent of Donaldson, Lufkin &
Jenrette Securities Corporation. The Company shall, prior to or concurrently
with the execution of this Agreement, deliver an agreement executed by (i) each
of the directors and executive officers of the Company and (ii) each stockholder
listed on Schedule B hereto to the effect that such person will not, during the
period commencing on the date such person signs such agreement and ending 90
days after the date of the Prospectus, without the prior written consent of
Donaldson, Lufkin & Jenrette Securities Corporation, (A) engage in any of the
transactions described in the first sentence of this paragraph or (B) make any
demand for, or exercise any right with respect to, the registration of any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock.
SECTION 3. Terms of the Public Offering. The Company is advised by you
that the Underwriters propose (i) to make a public offering of their respective
portions of the Securities as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Securities upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. The Securities shall be represented by
definitive certificates and shall be in such authorized denominations and
registered in such names as Donaldson, Lufkin & Jenrette Securities Corporation
shall request no later than two business days prior to the Closing Date or the
applicable Option Closing Date (as defined below), as the case may be. The
Company shall deliver the Securities, with any transfer taxes thereon duly paid
by the Company, to Donaldson, Lufkin & Jenrette Securities Corporation through
the facilities of the Depository Trust Company ("DTC") for the respective
accounts of the several Underwriters, against payment to the Company of the
Purchase Price therefor by wire transfer of Federal or other funds immediately
available in New York City. The certificates representing the Securities shall
be made available for inspection not later than 9:30 A.M., New York City time,
on the business day prior to the Closing Date or the applicable Option Closing
Date, as the case may be,
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at the office of DTC or its designated custodian (the "DESIGNATED OFFICE"). The
time and date of delivery and payment for the Firm Securities shall be 9:00
A.M., New York City time, on February 22, 2000 or such other time on the same or
such other date as Donaldson, Lufkin & Jenrette Securities Corporation and the
Company shall agree in writing. The time and date of delivery for the Firm
Securities are hereinafter referred to as the "CLOSING DATE". The time and date
of delivery and payment for any Additional Securities to be purchased by the
Underwriters shall be 9:00 A.M., New York City time, on the date specified in
the applicable exercise notice given by you pursuant to Section 2 or such other
time on the same or such other date as Donaldson, Lufkin & Jenrette Securities
Corporation and the Company shall agree in writing. The time and date of
delivery for any Additional Securities are hereinafter referred to as an "OPTION
CLOSING DATE".
The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 8 of this Agreement,
shall be delivered at the offices of Sidley & Austin, Bank One Plaza, 10 South
Dearborn Street, Chicago, Illinois 60603 (the "CLOSING LOCATION"), and the
Securities will be delivered at the Designated Office, all on the Closing Date
or such Option Closing Date, as the case may be.
SECTION 5. Agreements of the Company. The Company agrees with you as
follows:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purposes, (iii) when any amendment to
the Registration Statement becomes effective, (iv) of the happening of any event
during the period referred to in Section 5(d) below which makes any statement of
a material fact made in the Registration Statement or the Prospectus untrue or
which requires any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at any
time the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Company will use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you five signed copies of the Registration Statement
as first filed with the Commission and of each amendment to it, including all
exhibits, and to furnish to you and each Underwriter designated by you such
number of conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits but including documents incorporated therein
by reference, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; during the
period specified in Section 5(d) below, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised; and, during such period, to
prepare and file
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with the Commission, promptly upon your reasonable request, any amendment to the
Registration Statement or amendment or supplement to the Prospectus which may be
necessary or advisable in connection with the distribution of the Securities by
you, and to use its best efforts to cause any such amendment to the Registration
Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus
and any documents incorporated therein by reference) as such Underwriter or
dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall
occur or condition shall exist as a result of which, in the opinion of counsel
for the Underwriters, it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or supplement
the Prospectus to comply with applicable law, forthwith to prepare and file with
the Commission an appropriate amendment or supplement to the Prospectus so that
the statements in the Prospectus, as so amended or supplemented, will not in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with applicable law, and to furnish to each
Underwriter and to any dealer as many copies thereof as such Underwriter or
dealer may reasonably request.
(f) Prior to any public offering of the Securities, to cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Securities for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such jurisdictions
as you may request, to continue such registration or qualification in effect so
long as required for distribution of the Securities and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation, other
than a consent to service of process as to matters and transactions relating to
the Prospectus, the Registration Statement, any preliminary prospectus or the
offering or sale of the Securities, in any jurisdiction in which it is not now
so subject.
(g) To mail and make generally available to its stockholders as soon as
practicable an earnings statement covering the twelve-month period ending March
31, 2001 that shall satisfy the provisions of Section 11(a) of the Act, and to
advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement,
to furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock or furnished to
or filed with the Commission or any national securities
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exchange on which any class of securities of the Company is listed and such
other publicly available information concerning the Company and its subsidiaries
as you may reasonably request.
(i) To use the net proceeds received by it from the sale of the
Securities in the manner specified in the Prospectus (including the prospectus
supplement relating to the Securities) under "Use of Proceeds".
(j) To use reasonable best efforts to list for quotation, subject to
notice of issuance, the Securities on the Nasdaq National Market and to maintain
such listing on the Nasdaq National Market so long as the Securities are
outstanding.
(k) To, during the period when the Prospectus is required to be
delivered under the Act or the Exchange Act, file all documents required to be
filed with the Commission pursuant to the Exchange Act within the time periods
required by the Exchange Act.
(l) To use their best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date or any Option Closing Date, as the case may be, and to satisfy
all conditions precedent to the delivery of the Securities.
(m) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, the Company agrees to pay or cause
to be paid all expenses incident to the performance of its obligations under
this Agreement, including: (i) the fees, disbursements and expenses of counsel
to the Company and the Company's accountants in connection with the registration
and delivery of the Securities under the Act and all other fees and expenses in
connection with the preparation, printing, filing and distribution of the
Registration Statement (including financial statements and exhibits), any
preliminary prospectus, the Prospectus and all amendments and supplements to any
of the foregoing, including the mailing and delivering of copies thereof to the
Underwriters and dealers in the quantities specified herein, (ii) all costs and
expenses related to the transfer and delivery of the Securities to the
Underwriters, including any transfer or other taxes payable thereon, (iii) all
costs of printing or producing this Agreement and any other agreements or
documents in connection with the offering, purchase, sale or delivery of the
Securities, excluding any internal sales memoranda or other documents prepared
by any of you, (iv) all expenses in connection with the registration or
qualification of the Securities for offer and sale under the securities or Blue
Sky laws of the several states and all costs of printing or producing any
Preliminary and Supplemental Blue Sky Memoranda in connection therewith
(including the filing fees and reasonable fees and disbursements of counsel for
the Underwriters in connection with such registration or qualification and
memoranda relating thereto (not in excess of $5,000)), (v) the filing fees and
reasonable disbursements of counsel for the Underwriters in connection with the
review and clearance of the offering of the Securities by the National
Association of Securities Dealers, Inc., (vi) all costs and expenses incident to
the listing of the Securities on the Nasdaq National Market, (vii) the cost of
printing certificates representing the Securities, (viii) the costs and charges
of any transfer agent, registrar and/or depositary (including DTC), and (ix) all
other costs
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and expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section.
SECTION 6. Representations and Warranties of the Company and the Trust.
The Company represents and warrants to each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Act. The Registration Statement has become effective under the Act and no stop
order suspending the effectiveness of the Registration Statement has been issued
under the Act and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the Commission,
and any request on the part of the Commission for additional information has
been complied with.
At the respective times the Registration Statement became effective and
on the Closing Date (and, if any Additional Securities are purchased, on the
Option Closing Date), the Registration Statement, and any amendments and
supplements thereto complied and will comply in all material respects with the
requirements of the Act and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. The Prospectus
complies and as amended or supplemented will comply in all material respects
with the Act. The Prospectus does not contain and, as amended or supplemented,
will not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Each preliminary
prospectus filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the Act,
complied when so filed in all material respects with the Act and did not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under with they were made, not misleading. The representations
and warranties in this paragraph do not apply to statements or omissions in the
Registration Statement or Prospectus or any preliminary prospectus based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(b) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they became
effective or at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the
Act, as applicable, and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at the time
the Prospectus was issued and on the Closing Date (and if any Additional
Securities are purchased, on the Option Closing Date), did not and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
(c) KPMG LLP are independent public accountants with respect to the
Company and its subsidiaries as required by the Act.
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(d) The financial statements included in the Registration Statement and
the Prospectus (and any amendment or supplement thereto), together with the
related schedules and notes, present fairly in all material respects the
financial position of the Company and its consolidated subsidiaries at the dates
indicated and the results of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the Registration
Statement present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the financial
statements included in the Registration Statement. The other financial and
statistical information and data set forth or incorporated by reference in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) are, in all material respects, accurately presented and prepared on a
basis consistent with the financial statements included in the Registration
Statement and the books and records of the Company.
(e) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole (a "MATERIAL ADVERSE CHANGE"), (ii) there has not
been any material adverse change or any development involving a prospective
material adverse change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries has incurred any material liability or obligation, direct or
contingent.
(f) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Change.
(g) Each "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X) (each a "SUBSIDIARY" and, collectively,
the "SUBSIDIARIES") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, except
where the failure so to qualify or to be in good standing would not result in a
Material Adverse Change; except as otherwise disclosed in the Registration
Statement or the Prospectus, all of the issued and outstanding capital stock of
each such Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and is
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owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of
the outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
Subsidiary. The only subsidiaries of the Company are (a) the subsidiaries listed
on Schedule C hereto and (b) certain other subsidiaries which, considered in the
aggregate as a single Subsidiary, do not constitute a "significant subsidiary"
as defined in Rule 1-02 of Regulation S-X.
(h) The shares of issued and outstanding capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the Company
was issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(i) This Agreement has been duly authorized, executed and delivered by
the Company.
(j) All outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid, non-assessable and not
subject to any preemptive or similar rights. The capital stock of the Company,
including the Common Stock, conforms in all material respects to all statements
relating thereto contained in the Prospectus and such description conforms in
all material respects to the rights set forth in the instruments defining the
same.
(k) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers, manufacturers,
customers or contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Change.
(l) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any subsidiary, which is required to be disclosed in
the Registration Statement or the Prospectus (other than as disclosed therein),
or which might reasonably be expected to result in a Material Adverse Change, or
which might reasonably be expected to materially and adversely affect the
properties or assets of the Company and its subsidiaries, taken as a whole, or
the consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or any subsidiary
is a party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement or the Prospectus,
including ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Change.
(m) There are no contracts or documents which are required to be
described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which have
not been so described and filed as required in all material respects.
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(n) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "INTELLECTUAL PROPERTY") necessary to carry on the business now
operated by them, and neither the Company nor any of its subsidiaries has
received any written notice of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of the Company or any of its subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Change.
(o) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or sale
of the Securities hereunder or the consummation of the transactions contemplated
by this Agreement, except (i) such as have been already obtained or as may be
required under the Act or state securities laws or (ii) where the failure to
make such filing, or obtain such authorization, approval, consent, license,
order, representation, qualification or decree would not, singly or in the
aggregate, result in a Material Adverse Change.
(p) The Company and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (each, an "AUTHORIZATION") issued
by the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them; the Company and
its subsidiaries are in compliance with the terms and conditions of all such
Authorizations, except where the failure so to comply would not, singly or in
the aggregate, result in a Material Adverse Change; all of the Authorizations
are valid and in full force and effect, except where the invalidity of such
Authorizations or the failure of such Authorizations to be in full force and
effect would not result in a Material Adverse Change; and neither the Company
nor any of its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such Authorizations which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Change.
(q) The Company and its subsidiaries have good and marketable title to
all real property owned by the Company and its subsidiaries and good title to
all other material properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the Prospectus or
(b) do not, singly or in the aggregate, materially and adversely affect the
value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company or any of its subsidiaries;
and all of the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which the Company or
any of its subsidiaries holds properties described in the Prospectus, are in
full force and effect, and neither the Company nor any subsidiary has received
any written notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any subsidiary under any of the
leases or subleases mentioned above, or adversely
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affecting the rights of the Company or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or sublease.
(r) Except as described in the Registration Statement and except as
would not, singly or in the aggregate, result in a Material Adverse Change, to
the knowledge of the Company after due inquiry, (A) neither the Company nor any
of its subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "HAZARDOUS MATERIALS") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "ENVIRONMENTAL LAWS"), (B) the Company and
its subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (D) there
are no events or circumstances that might reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(s) In connection with the operation by the Company or any of its
subsidiaries of United States flag vessels, the Company and such subsidiaries
are citizens of the United States within the meaning of Section 2 of the
Shipping Act, 1916, as amended.
(t) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance 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 conformity with GAAP 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.
(u) Neither the Company nor any of its subsidiaries is (i) in violation
of its respective charter, declaration of trust or by-laws or (ii) in default in
the performance of any obligation, agreement, covenant or condition contained in
any indenture, loan agreement, mortgage, lease or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their respective property is bound except,
in the case of clause (ii), for such defaults which would not result in a
Material Adverse Change.
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(v) The execution, delivery and performance of this Agreement by the
Company and the compliance by the Company with all the provisions hereof and
thereof and the consummation of the transactions contemplated hereby and thereby
including the issuance and sale of the Securities by the Company will not (i)
require any consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as have been made or
received and except such as may be required under the securities or Blue Sky
laws of the various states), (ii) constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws of the Company or any
of its subsidiaries or any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or their respective property is
bound except for such breaches or defaults of such indentures, loan agreements,
mortgages, leases or other agreements which would not result in a Material
Adverse Change, (iii) violate any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental body or agency having
jurisdiction over the Company, any of its subsidiaries or their respective
property, (iv) result in the imposition or creation of (or the obligation to
create or impose) a Lien under any agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound except as would not result in
a Material Adverse Change or (v) result in the suspension, termination or
revocation of any Authorization of the Company or any of its subsidiaries or any
other impairment of the rights of the holder of any such Authorization except as
would not result in a Material Adverse Change.
(w) Neither the Company nor any of its subsidiaries is, and after
giving effect to the offering and sale of the Securities, and the application of
the proceeds thereof as described in the Prospectus, will not be, an "investment
company," or an entity "controlled" by an investment company, as such terms are
defined in the Investment Company Act of 1940, as amended (the "INVESTMENT
COMPANY ACT").
(x) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the Securities.
(y) Each certificate signed by any officer of the Company or any of its
subsidiaries delivered to the Underwriters or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company, to the Underwriter
as to the matters covered thereby.
SECTION 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
its directors, its officers and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and judgments (including, without limitation, any legal or other expenses
reasonably incurred in connection with investigating or defending any matter,
including any action, that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), the Prospectus (or any amendment or
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supplement thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or judgments are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter or its market making or stabilization
activities furnished in writing to the Company by such Underwriter through you
expressly for use therein; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter who failed to deliver a Prospectus, as then amended
or supplemented, (so long as the Prospectus and any amendments or supplements
thereto was provided by the Company to the several Underwriters in the requisite
quantity and on a timely basis to permit proper delivery on or prior to the
Closing Date) to the person asserting any losses, claims, damages, liabilities
or judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or preliminary prospectus
supplement, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if such material misstatement or omission or alleged
material misstatement or omission was cured in such Prospectus and such
Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to such Underwriter but
only with reference to information relating to such Underwriter or its market
making or stabilization activities furnished in writing to the Company by such
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto), the Prospectus (or any amendment or supplement thereto) or
any preliminary prospectus or preliminary prospectus supplement.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 7(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall
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have been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by Donaldson, Lufkin & Jenrette Securities Corporation, in the case
of parties indemnified pursuant to Section 7(a), and by the Company, in the case
of parties indemnified pursuant to Section 7(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action (i) effected with its written consent or (ii) effected without its
written consent if the settlement is entered into more than twenty business days
after the indemnifying party shall have received a request from the indemnified
party for reimbursement for the fees and expenses of counsel (in any case where
such fees and expenses are at the expense of the indemnifying party) and, prior
to the date of such settlement, the indemnifying party shall have failed to
comply with such reimbursement request. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities or (ii) if the allocation provided by clause 7(d)(i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 7(d)(i) 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, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (after deducting
underwriting discounts and commissions, but before deducting expenses) received
by the Company, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of the Securities, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things,
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whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) 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 in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7(d) are several in proportion to the respective number
of Securities purchased by each of the Underwriters hereunder and not joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
SECTION 8. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by each of the
Company of its covenants and other obligations hereunder, and to the following
further conditions:
(a) The Registration Statement has become effective and on the Closing
Date no stop order suspending the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. The Prospectus shall have been
filed with the Commission in accordance with Rule 424(b).
(b) On the Closing Date, the Underwriters shall have received the
favorable opinions, dated as of the Closing Date, of (i) Seyfarth, Shaw,
Fairweather & Geraldson, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters to the effect set
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forth in Exhibit A-1 hereto and to such further effect as counsel to the
Underwriters may reasonably request, (ii) Jordan B. Allen, Executive Vice
President, General Counsel and Secretary of the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters to the effect set forth
in Exhibit A-2 and to such further effect as counsel to the Underwriters may
reasonably request, and (iii) Preston, Gates, Ellis & Rouvelas Meeds, counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters to the effect set forth in Exhibit A-3 hereto and to
such further effect as counsel to the Underwriters may reasonably request. Such
counsel may state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of officers of
the Company and its subsidiaries and certificates of public officials.
(c) On the Closing Date, the Underwriters shall have received the
favorable opinion, dated as of the Closing Date, of Sidley & Austin, counsel for
the Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters to the effect set forth in Exhibit C. In giving
such opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law of
the United States and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to the Representatives. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
(d) On the Closing Date, the Underwriters shall have received a
certificate of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of the Closing
Date, to the effect that (i) the representations and warranties in Section 6
hereof are true and correct with the same force and effect as though expressly
made on and as of the Closing Date, (ii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date, and (iii) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or to the Company's
knowledge are contemplated by the Commission.
(e) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date hereof), (i) there
shall not have occurred any change or any development involving a prospective
change in the condition, financial or otherwise, or the earnings, business,
management or operations of the Company and its subsidiaries, taken as a whole,
(ii) there shall not have been any change or any development involving a
prospective change in the capital stock or in the long-term debt of the Company
or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 8(e)(i),
8(e)(ii) or 8(e)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Securities on the terms and in
the manner contemplated in the Prospectus.
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(f) At the time of the execution of this Agreement, the Underwriters
shall have received from KPMG LLP a letter dated such date, in form and
substance satisfactory to the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters 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 or incorporated by reference in the Registration
Statement and the Prospectus.
(g) On the Closing Date, the Underwriters shall have received from KPMG
LLP a letter, dated as of the Closing Date, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (f) of this
Section, except that (i) the specified date referred to therein shall be a date
not more than three business days prior to the Closing Date, (ii) such letter
shall state that KPMG LLP has conducted a SFAS No. 71 review of the Company's
unaudited condensed consolidated balance sheet as of December 31, 1999, the
unaudited condensed statements of operations for the three and 12 months ended
December 31, 1999 and the unaudited condensed consolidated statement of cash
flows for the 12 months ended December 31, 1999 and shall contain customary
"negative assurance" provisions as to such financial statements, and (iii) such
letter shall contain a customary "negative assurance" provision as to the period
from January 1, 2000 through a date not more than three business days prior to
the Closing Date.
(h) On the Closing Date, the Securities shall have been approved for
inclusion in the Nasdaq National Market, subject only to official notice of
issuance.
(i) The NASD has confirmed that it has not raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(j) The Company shall have delivered to you the agreements specified in
Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
(k) In the event that the Underwriters exercise their option provided
in Section 2 hereof to purchase all or any portion of the Additional Securities,
the representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any subsidiary of the
Company hereunder shall be true and correct as of each Option Closing Date, as
of the relevant Option Closing Date the condition set forth in Section 8(d)
shall be satisfied and, on the relevant Option Closing Date, the Underwriters
shall have received:
(i) A certificate, dated such Option Closing Date, of the President
or a Vice President of the Company and of the chief financial or chief
accounting officer of the Company confirming that the certificate
delivered on the Closing Date pursuant to Section 8(d) hereof remains
true and correct as of such Option Closing Date.
(ii) The favorable opinion of Seyfarth, Shaw, Fairweather &
Geraldson, counsel for the Company, Jordan B. Allen, Executive Vice
President, General Counsel and Secretary of the Company, Preston,
Gates, Ellis & Rouvelas Meeds, counsel for the Company, each
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in form and substance satisfactory to counsel for the Underwriters,
dated such Option Closing Date, relating to the Additional Securities
to be purchased on such Option Closing Date and otherwise to the same
effect as the opinion required by Section 8(b) hereof.
(iii) The favorable opinion of Sidley & Austin, counsel for the
Underwriters, dated such Option Closing Date, relating to the
Additional Securities to be purchased on such Option Closing Date and
otherwise to the same effect as the opinion required by Section 8(c)
hereof.
(iv) A letter from KPMG LLP, in form and substance satisfactory to the
Underwriters and dated such Option Closing Date, substantially in the
same form and substance as the letter furnished to the Underwriters
pursuant to Section 8(f) hereof, except that the "specified date" in
the letter furnished pursuant to this paragraph shall be a date not
more than three business days prior to such Option Closing Date.
(l) On the Closing Date and on each Option Closing Date, counsel for
the Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
SECTION 9. Effectiveness of Agreement; Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company if after the execution of this
Agreement any of the following has occurred: (i) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and, in your judgment,
makes it impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus, (ii) the suspension or material limitation of
trading in securities or other instruments on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market or limitation on prices
for securities or other instruments on any such exchange or the Nasdaq National
Market, (iii) the suspension of trading of any securities of the Company on the
Nasdaq National Market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a Material Adverse Change on the
financial markets in the United States.
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If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Securities or Additional Securities, as the case may be, which it has or
they have agreed to purchase hereunder on such date and the aggregate number of
Firm Securities or Additional Securities, as the case may be, which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the total number of Firm Securities or Additional
Securities, as the case may be, to be purchased on such date by all
Underwriters, each non-defaulting Underwriter shall be obligated severally, in
the proportion which the number of Firm Securities set forth opposite its name
in Schedule I bears to the total number of Firm Securities which all the
non-defaulting Underwriters have agreed to purchase, or in such other proportion
as you may specify, to purchase the Firm Securities or Additional Securities, as
the case may be, which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Firm Securities or Additional Securities, as the case may be, which
any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number of
Firm Securities or Additional Securities, as the case may be, without the
written consent of such Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Firm Securities and the aggregate
number of Firm Securities with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Securities to be purchased by all
Underwriters and arrangements satisfactory to you and the Company for purchase
of such Firm Securities are not made within 48 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter and the Company. In any such case which does not result in
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. If, on the
Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Securities and the aggregate number of Additional Securities
with respect to which such default occurs is more than one-tenth of the
aggregate number of Additional Securities to be purchased on such date, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase such Additional Securities or (ii) purchase not
less than the number of Additional Securities that such non-defaulting
Underwriters would have been obligated to purchase on such date in the absence
of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
SECTION 10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to American
Classic Voyages Co., Two North Riverside Plaza, Suite 200, Chicago, Illinois
60606, Attention: Jordan B. Allen and (ii) if to any Underwriter or to you, to
you c/o Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park Avenue,
New York, New York 10172, Attention: Syndicate Department, or in any case to
such other address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of
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and payment for the Securities, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the officers or directors of any Underwriter, any person controlling any
Underwriter, the Company, the officers or directors of the Company or any person
controlling the Company, (ii) acceptance of the Securities and payment for them
hereunder and (iii) termination of this Agreement.
If for any reason the Securities are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 9 or as a result of the default by the
Underwriters in their obligations to purchase the Securities hereunder), the
Company agrees to reimburse the several Underwriters for all out-of-pocket
expenses (including the fees and disbursements of counsel) incurred by them.
Notwithstanding any termination of this Agreement, the Company shall be liable
for all expenses which it has agreed to pay pursuant to Section 5(i) hereof. The
Company also agrees to reimburse the several Underwriters, their directors and
officers and any persons controlling any of the Underwriters for any and all
fees and expenses (including, without limitation, the reasonable fees and
disbursements of counsel) incurred by them in connection with enforcing their
rights hereunder (including, without limitation, pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the Company's directors and the Company's officers who sign
the Registration Statement and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Securities from any of the
several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
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21
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
AMERICAN CLASSIC VOYAGES CO.
By: _______________________________
Name:
Title:
DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
CRAIG-HALLAM CAPITAL GROUP, INC.
Acting severally on behalf of themselves and the several
Underwriters named in Schedule A hereto
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: ____________________________________
-21-
22
SCHEDULE A
Name of Underwriter Number of Firm Securities
------------------- -------------------------
Donaldson, Lufkin & Jenrette Securities Corporation..... 558,000
Goldman, Sachs & Co. ................................... 558,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated...... 558,000
Craig-Hallam Capital Group, Inc. ....................... 126,000
A.G. Edwards & Sons, Inc. .............................. 40,000
Wasserstein Perella Securities, Inc. ................... 40,000
Conifer Securities LLC ................................. 40,000
D.A. Davidson & Co. .................................... 40,000
Ryan, Beck & Co. ....................................... 40,000
Total................................................... 2,000,000
=========
-A-
23
SCHEDULE B
Samuel Zell
Ann Lurie Revocable Trust
EGI Holdings, Inc.
EGIL Investments, Inc.
Samstock, L.L.C.
Anda Partnership
Philip C. Calian
Jordan B. Allen
Roderick K. McLeod
Randall L. Talcott
Todd D. Allen
Ronald W. Sieman
David Simmons
Townsend E. Carman
Heinz J. Niedermaier
Arthur A. Greenberg
Jerry R. Jacob
Emanuel L. Rouvelas
Mark Slezak
Joseph P. Sullivan
Jeffrey N. Watanabe
John R. Berry
Bradbury Dyer, III
Laurence S. Geller
-B-
24
SCHEDULE C
AMCV Cruise Operations, Inc.
AMCV Holdings, Inc.
The Delta Queen Steamboat Co.
Cruise America Travel, Incorporated
Great River Cruise Line, L.L.C.
Great Ocean Cruise Line, L.L.C.
Great AQ Steamboat, L.L.C.
Great Hawaiian Cruise Line, Inc.
Great Independence Ship Co.
Great Hawaiian Properties Corporation
American Hawaii Properties Corporation
Project America, Inc.
Project America Ship I, Inc.
Great Pacific NW Cruise Line, L.L.C.
-C-
25
Exhibit A-1
FORM OF OPINION OF SEYFARTH, SHAW FAIRWEATHER & GERALDSON
(i) The Company has been incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under the Underwriting Agreement.
(iii) The shares of issued and outstanding capital stock of the Company have
been duly authorized and validly issued and are fully paid and non-assessable;
and to the best of our knowledge, after reasonable inquiry, none of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the Company
under the Certificate of Incorporation or By-laws of the Company, the General
Corporation Law of the State of Delaware, or based solely upon a certificate of
an officer of the Company, any agreement to which the Company is a party.
(iv) The Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to the Underwriting Agreement and, when issued and
delivered by the Company pursuant to the Underwriting Agreement against payment
of the consideration set forth in the Underwriting Agreement, will be validly
issued and fully paid and non-assessable.
(v) The issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Company under the Certificate of
Incorporation or By-laws of the Company, the General Corporation Law of the
State of Delaware, or based solely upon a certificate of an officer of the
Company, any agreement to which the Company is a party.
(vi) Each Subsidiary has been incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to the best of our
knowledge, is owned by the Company, directly or through subsidiaries, and based
solely upon a certificate of an officer of the Company is free and clear of any
material security interest, mortgage, pledge, lien, encumbrance, except that
such capital stock may be pledged or otherwise encumbered in connection with
that certain Credit Agreement dated as of February 25, 1999 with a group of
lenders, with the Chase Manhattan Bank, as agent, and any related agreements and
instruments ("CHASE CREDIT AGREEMENT"); and to the best of our knowledge, none
of the outstanding shares of capital stock of any
A-1-1
26
Subsidiary was issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary under the Certificate of Articles of
Incorporation or By-laws of such Subsidiary, the corporation statute of the
jurisdiction of incorporation of such Subsidiary, or, based solely upon a
certificate of an officer of the Company, any agreement to which such Subsidiary
is a party.
(vii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(viii) The Registration Statement has been declared effective under the Act; any
required filing of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to the best of
our knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and no proceedings for that purpose have
been instituted or are pending or threatened by the Commission.
(ix) The Registration Statement, the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the financial statements and schedules and other financial information included
therein or omitted therefrom, as to which we need express no opinion) complied
as to form in all material respects with the requirements of the Act.
(x) The documents incorporated by reference in the Prospectus (other than the
financial statements and schedules and other financial information included
therein or omitted therefrom, as to which we need express no opinion), when they
became effective or were filed with the Commission, as the case may be, complied
as to form in all material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder.
(xi) The form of certificate used to evidence the Securities complies in all
material respects with all applicable statutory requirements and the
requirements of the Nasdaq National Market.
(xii) To the best of our knowledge, except as described in the Prospectus, there
is not pending or threatened any action, suit, proceeding, inquiry or
investigation, to which the Company or any Subsidiary is a party, or to which
the property of the Company or any Subsidiary is subject, before or brought by
any court or governmental agency or body, domestic or foreign, which could
reasonably be expected to result in a Material Adverse Change, or which could
reasonably be expected to materially and adversely affect the properties or
assets thereof or the consummation of the transactions contemplated in the
Underwriting Agreement or the performance by the Company of its obligations
thereunder.
A-1-2
27
(xiii) The information in the Registration Statement under Item 15 of Part II,
to the extent that it constitutes matters of law, summaries of legal matters,
the Company's charter and bylaws or legal proceedings, or legal conclusions, has
been reviewed by us and fairly presents all material respects the information
set forth therein.
(xiv) To the best of our knowledge, except for any statutes or regulations
relating to maritime or transportation matters, as to which we express no
opinion, there are no material statutes or regulations that are required to be
described in the Prospectus that are not described or incorporated by reference
therein.
(xv) All descriptions in the Registration Statement of contracts and other
written agreements to which the Company or its Subsidiaries are a party fairly
present, in all material respects, the material terms of such contracts and
agreements; to the best of our knowledge, there are no material or other written
agreements to which the Company or its Subsidiaries is a party required to be
described or referred to in the Registration Statement or to be filed or
incorporated by reference as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto;
provided that we express no opinion with respect to any contract or other
agreement relating to vessel construction or maritime matters, other than the
agreement to acquire a vessel described on page S-29 of the Prospectus under the
heading "American Classic Voyages-Expansion Plans-Delta Queen Expansion
Plans-New Riverboat."
(xvi) To the best of our knowledge, neither the Company nor any Subsidiary is in
violation of its certificate or articles of incorporation or by-laws.
(xvii) To the best of our knowledge, after reasonable inquiry, no filing with,
or authorization, approval, consent, license, order, registration, qualification
or decree of, any court or governmental authority or agency, domestic or foreign
(other than under the Act, which have been obtained, or as may be required under
the securities or blue sky laws of the various states, as to which we need
express no opinion) is necessary or required in connection with the due
authorization, execution and delivery of the Underwriting Agreement or for the
offering, issuance, sale or delivery of the Securities.
(xviii) The execution, delivery and performance of the Underwriting Agreement
and the consummation of the transactions contemplated in the Underwriting
Agreement and in the Registration Statement (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use Of Proceeds"), compliance by
the Company with its obligations under the Underwriting Agreement and the
issuance and sale of the Securities by the Company do not and will not, whether
with or without the giving of notice or lapse of time or both, to the best of
our knowledge, conflict with or constitute a breach of, or default under or
result in the creation or imposition of any Lien upon any property or assets of
the Company or any Subsidiary pursuant to any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or any other agreement or
instrument to which the Company or any Subsidiary is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any Subsidiary is subject (except
A-1-3
28
for such conflicts, breaches or defaults or Liens that would not result in a
Material Adverse Change and except that we express no opinion with respect to
the Chase Credit Agreement or any contract, mortgage, note, other agreement or
instrument with the Maritime Administration of the United States Department of
Transportation)), nor will such action result in any violation of the provisions
of the certificate or articles of incorporation or by-laws of the Company or any
Subsidiary, or, to the best of our knowledge, any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their respective properties, assets or
operations.
(xix) The Securities conform in all material respects to the descriptions
thereof contained in the Prospectus.
(xx) Neither the Company nor any of its subsidiaries is, and after giving effect
to the offering and sale of the Securities will be, an "investment company" or
an entity "controlled" by an "investment company," as such terms are defined in
the Investment Company Act.
(xxi) The statements set forth in the Prospectus under the caption "Description
of Capital Stock" insofar as they purport to describe the provisions of the law
and the documents described therein, fairly summarize or describe such terms,
documents and laws in all material respects.
We have participated in discussions with officers and representatives of the
Company during the course of the preparation of the Registration Statement.
Although we have not independently checked or verified the information contained
in the Registration Statement or Prospectus, on the basis of the aforementioned
discussions, nothing has come to our attention that would lead us to believe
that the Registration Statement or any amendment thereto (except for financial
statements and schedules and other financial information included or
incorporated by reference therein or omitted therefrom, as to which we need make
no statement), at the time such Registration Statement or any such amendment
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any amendment or
supplement thereto (except for financial statements and schedules and other
financial information included or incorporated by reference therein or omitted
therefrom, as to which we need make no statement), on the date of the
Prospectus, on the date of any such amended or supplemented prospectus or on the
Closing Date, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may, as to matters of fact (but not as
to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall not
state that it is to be governed or
A-1-4
29
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991). In such opinion,
counsel may indicate that they are not expressing any opinion concerning any law
other than the laws of the State of Illinois and the State of New York (but not
including any statutes, ordinances, administrative decisions, rules or
regulations of counties, towns, municipalities and special political
subdivisions, or any judicial decisions to the extent that they deal with any of
the foregoing), the General Corporation Law of the State of Delaware and
applicable federal law of the United States.
A-1-5
30
Exhibit A-2
FORM OF OPINION OF
JORDAN B. ALLEN
(i) The Company is qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Change.
(ii) Each Subsidiary is qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Change.
(iii) To the best of my knowledge, no default by the Company or any
Subsidiary exists in the due performance or observation of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or reference to in the Registration Statement or
the Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement (except for such violations or defaults which could not
reasonably be expected to result in a Material Adverse Change).
(iv) The execution, delivery and performance of the Underwriting
Agreement and the consummation of the transactions contemplated in the
Underwriting Agreement and in the Registration Statement (including the issuance
and sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption "Use Of Proceeds"),
compliance by the Company with their obligations under the Underwriting
Agreement and the issuance and sale of the Securities do not and will not,
whether with or without the giving of notice or lapse of time or both, to the
best of my knowledge, conflict with or constitute a breach of, or default under
or result in the creation or imposition of any Lien upon any property or assets
of the Company or any subsidiary pursuant to the Chase Credit Agreement (except
for such Liens that would not result in a Material Adverse Change).
A-2-1
31
Exhibit A-3
FORM OF OPINION OF
PRESTON, GATES, ELLIS &
ROUVELAS MEEDS
(i) The information in the Prospectus under the headings
"Prospectus Supplement Summary-American Classic Voyages-Investment
Highlights -- Statutory Competitive Advantages," "Risk Factors-If we
cannot benefit from exclusive rights of the Pilot Project Statute, our
revenue growth in Hawaii will be adversely affected," "Risk
Factors-Modification of the Passenger Vessel Act may adversely affect
our business," "Risk Factors-If we do not complete drydockings or wet
dockings on schedule or within budget, our revenues may be adversely
impacted," "American Classic Voyages-Statutory Competitive Advantages,"
and "American Classic Voyages-Current Operations-Governmental
Regulation" (together, the "REGULATORY PORTION") to the extent it
constitutes matters of law, summaries of legal matters or legal
conclusions has been reviewed by us and is correct in all material
respects.
(ii) Nothing has come to our attention that would lead us to
believe that the information contained in the Regulatory Portion of the
Registration Statement or any amendment thereto, at the time such
Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the information contained in
the Regulatory Portion of the Prospectus or any amendment or supplement
thereto, at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or on the Closing Date,
included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(iii) To the best of our knowledge there are no statutes or
regulations that are required to be described in the Regulatory Portion
of the Prospectus that are not described as required.
(iv) All descriptions in the Registration Statement and the
Prospectus of the construction contract between Project America, Inc.,
an indirect subsidiary of the Company, and Ingalls Shipbuilding, Inc.,
the construction contract between Coastal Queen Holdings, L.L.C. and
Atlantic Marine, Inc. and the construction contract between The Delta
Queen Steamboat Co. and Cascade General, Inc. and the description of
the vessel acquisition contract described under "American Classic
Voyages--Expansion Plans--Hawaii Expansion Plans--Acquisition and
Introduction of ms Patriot" fairly present in all material respects,
the material terms of such contract, and, to the best of our knowledge,
there are no material contracts or other written agreements for the
construction of vessels to which the Company or is Subsidiaries are a
party required to be
A-3-1
32
described or referred to in the Registration Statement or filed as
exhibits thereto, other than those described or referred to therein or
filed or incorporated by reference as exhibits.
(v) The execution, delivery and performance of the
Underwriting Agreement and the consummation of the transactions
contemplated in the Underwriting Agreement and in the Registration
Statement (including the issuance and sale of the Securities and the
use of the proceeds from the sale of the Securities as described in the
Prospectus under the caption "Use of Proceeds") and compliance by the
Company with its obligations under the Underwriting Agreement do not
and will not, whether with or without the giving of notice or lapse of
time or both, to the best of our knowledge, conflict with or constitute
a breach of, or default under or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to any contract, mortgage, note,
other agreement or instrument with the Maritime Administration of the
United States Department of Transportation to which the Company or any
Subsidiary is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any Subsidiary is
subject (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Change).
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
A-3-2
33
FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER STOCKHOLDERS PURSUANT TO
SECTION 2
Exhibit B
February 15, 2000
Donaldson, Lufkin & Jenrette
Securities Corporation
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Craig-Hallam Capital Group, Inc.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Re: Proposed Public Offering by American Classic Voyages Co.
--------------------------------------------------------
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of
American Classic Voyages Co., a Delaware corporation (the "COMPANY"),
understands that Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ") and
Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and
Craig-Hallum Capital Group, Inc. propose to enter into a Underwriting Agreement
(the "UNDERWRITING AGREEMENT") with the Company providing for the public
offering of shares of common stock, par value $.01 per share (the "COMMON
STOCK") of the Company.
To induce the Underwriters to participate in the Public Offering and to
continue their efforts in connection with the Public Offering, the undersigned,
during the period commencing on the date hereof and ending 90 days after the
date of the final prospectus relating to the Public Offering:
34
(i) agrees not to (x) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock (including, without limitation,
shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock which may be deemed to be beneficially owned by
the undersigned in accordance with the rules and regulations of the Securities
and Exchange Commission) or (y) enter into any swap or other arrangement that
transfers all or a portion of the economic consequences associated with the
ownership of any Common Stock (regardless of whether any of the transactions
described in clause (x) or (y) is to be settled by the delivery of Common Stock,
or such other securities, in cash or otherwise), without the prior written
consent of Donaldson, Lufkin & Jenrette Securities Corporation;
(ii) agrees not to make any demand for, or exercise any right with
respect to, the registration of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, without the
prior written consent of Donaldson, Lufkin & Jenrette Securities Corporation;
and
(iii) authorizes the Company to cause the transfer agent to decline to
transfer and/or to note stop transfer restrictions on the transfer books and
records of the Company with respect to any shares of Common Stock and any
securities convertible into or exercisable or exchangeable for Common Stock for
which the undersigned is the record holder and, in the case of any such shares
or securities for which the undersigned is the beneficial but not the record
holder, agrees to cause the record holder to cause the transfer agent to decline
to transfer and/or to note stop transfer restrictions on such books and records
with respect to such shares or securities.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into the agreements set forth herein, and
that, upon request, the undersigned will execute any additional documents
necessary or desirable in connection with the enforcement hereof. All authority
herein conferred or agreed to be conferred shall survive the death or incapacity
of the undersigned and any obligations of the undersigned shall be binding upon
the heirs, personal representatives, successors, and assigns of the undersigned.
Very truly yours,
Signature:________________________
Print Name:_______________________
B-1
35
Exhibit C
FORM OF OPINION OF
SIDLEY & AUSTIN
(i) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(ii) The statements under the captions "Description of Capital Stock,"
and "Underwriting," insofar as such statements constitute summaries of the legal
matters and documents referred to therein, fairly summarize the legal matters
and documents referred to therein in all material respects.
(iii) The Securities to be purchased by the Underwriters from the
Company have been duly authorized for issuance and sale to the Underwriters
pursuant to the Underwriting Agreement and, when issued and delivered by the
Company pursuant to the Underwriting Agreement against payment of the
consideration set forth in the Underwriting Agreement, will be validly issued,
fully paid and non-assessable; and no holder of the Securities is or will be
subject to personal liability by reason of being such a holder.
(iv) The issuance and sale of the Securities by the Company is not
subject to the preemptive rights of any stockholder of the Company arising by
operation of law or under the certificate of incorporation or by-laws of the
Company.
(v) Each of the Registration Statement and the Prospectus, as of its
respective effective or issue date (other than the financial statements,
financial data and supporting schedules included therein or omitted therefrom,
as to which we express no opinion), complied as to form in all material respects
with the requirements of the 1933 Act.
(vi) Nothing has come to our attention which causes us to believe that
the Registration Statement (other than the financial statements, financial data
and supporting schedules included therein, as to which we express no belief), at
the time it became effective, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus (other than
the financial statements, financial data and supporting schedules included
therein, as to which we express no belief), as of its date or at the date
hereof, included or includes any untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
C-1