1
CORRECTIONS CORPORATION OF AMERICA
2,500,000 SHARES
OF
COMMON STOCK
UNDERWRITING AGREEMENT
__________________, 1996
J.C. BRADFORD & CO.
STEPHENS INC.
As Representatives of the Several Underwriters
c/o J.C. Bradford & Co.
J.C. Bradford Financial Center
330 Commerce Street
Nashville, Tennessee 37201
Ladies and Gentlemen:
Corrections Corporation of America, a Delaware corporation (the
"Company"), and certain stockholders of the Company as set forth on Schedule II
hereto (the "Selling Stockholders") propose to sell to the underwriters named
in Schedule I hereto (the "Underwriters") for whom you are acting as the
representatives (the "Representatives") 1,500,000 and 1,000,000 shares,
respectively (collectively the "Firm Shares"), of common stock, $1.00 par value
(the "Common Stock"), of the Company. Such shares of Common Stock are to be
sold to the Underwriters, acting severally and not jointly, in such amounts as
are set forth in Schedule I hereto opposite the name of such Underwriter. The
Company proposes to grant to the Underwriters an option to purchase up to
375,000 additional shares of Common Stock as provided for in Section 3 of this
Agreement for the purpose of covering over-allotments (the "Option Shares").
The Firm Shares and the Option Shares purchased pursuant to this Agreement are
herein called the "Shares."
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company meets the requirements for use of, and has
filed with the Securities and Exchange Commission (the "Commission") under
the Securities Act of
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1933, as amended (the "Securities Act"), a registration statement on Form
S-3 (Registration No. 333-______), including the related preliminary
prospectus relating to the Shares, and has filed one or more amendments
thereto. Copies of such registration statement and any amendments,
including any post-effective amendments, and all forms of the related
prospectuses contained therein and any supplements thereto, have been
delivered to you. Such registration statement, including the prospectus,
Part II, the information incorporated by reference, all financial
schedules and exhibits thereto, and all information deemed to be a part of
such Registration Statement pursuant to Rule 430A under the Securities
Act, as amended at the time when it shall become effective, is herein
referred to as the "Registration Statement," and the prospectus included
as part of the Registration Statement on file with the Commission that
discloses all the information that was omitted from the prospectus on the
effective date pursuant to Rule 430A of the Rules and Regulations (as
defined below) and in the form filed pursuant to Rule 424(b) under the
Securities Act is herein referred to as the "Final Prospectus." The
prospectus included as part of the Registration Statement on the date when
the Registration Statement became effective is referred to herein as the
"Effective Prospectus." Any prospectus included in the Registration
Statement and in any amendment thereto prior to the effective date of the
Registration Statement is referred to herein as a "Preliminary
Prospectus." For purposes of this Agreement, "Rules and Regulations" mean
the rules and regulations promulgated by the Commission under either the
Securities Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as applicable.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus, and each Preliminary
Prospectus, at the time of filing thereof, complied with the requirements
of the Securities Act and the Rules and Regulations, and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; except that the foregoing does not apply to statements or
omissions made in reliance upon and in conformity with written information
furnished to the Company by any Underwriter specifically for use therein
(it being understood that the only information so provided is the
information included in the last paragraph on the cover page and in the
first and third paragraphs under the caption "Underwriting" in the
Preliminary, Effective and Final Prospectus). When the Registration
Statement becomes effective and at all times subsequent thereto up to and
including the First Closing Date (as hereinafter defined), (i) the
Registration Statement, the Effective Prospectus and Final Prospectus and
any amendments or supplements thereto will contain all statements which
are required to be stated therein in accordance with the Securities Act
and the Rules and Regulations and will comply with the requirements of the
Securities Act and the Rules and Regulations, and (ii) neither the
Registration Statement, the Effective Prospectus nor the Final Prospectus
nor any amendment or supplement thereto will include any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances in which they are made, not misleading;
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except that the foregoing does not apply to statements or omissions made
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter specifically for use therein (it being
understood that the only information so provided is the information
included in the last paragraph on the cover page and in the first and
third paragraphs under the caption "Underwriting" in the Final
Prospectus).
(c) The documents which are incorporated by reference in any
Preliminary, Effective and Final Prospectus or from which information is
so incorporated by reference, when they become effective or were filed
with the Commission, as the case may be, complied in all material respects
with the requirements of the Securities Act or the Exchange Act, as
applicable, and the Rules and Regulations, and any documents so filed
prior to the termination of this offering and incorporated by reference
subsequent to the effective date of the Registration Statement shall, when
they are filed with the Commission, conform in all material respects with
the requirements of the Securities Act and the Exchange Act, as
applicable, and the Rules and Regulations.
(d) Each of the Company and each subsidiary of the Company
(as used herein, the term "subsidiary" includes any corporation, joint
venture or partnership in which the Company or any subsidiary of the
Company has a direct or indirect ownership interest) is duly incorporated
and validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization with full power and
authority to own its properties and conduct business as now conducted and
is duly qualified or authorized to do business and is in good standing in
all jurisdictions wherein the nature of its business or the character of
property owned or leased may require it to be qualified or authorized to
do business. Each of the Company and its subsidiaries hold all licenses,
consents and approvals, and has satisfied all eligibility and other
similar requirements imposed by federal and state regulatory bodies,
administrative agencies or other governmental bodies, agencies or
officials, in each case as required for the conduct of the business in
which it is engaged and is contemplated to be engaged in the Effective
Prospectus and the Final Prospectus.
(e) The outstanding capital stock of each of the Company's
corporate subsidiaries has been duly authorized and validly issued and is
fully paid and nonassessable. Except as set forth on Exhibit 1(e) hereto,
(i) the Company owns all of the outstanding shares of capital stock of the
Company's corporate subsidiaries, free and clear of all liens, claims,
encumbrances, security interests, restrictions, stockholder agreements,
voting trusts or other claims of third parties, (ii) the Company has no
other subsidiaries and is not a partner or joint venturer in any
partnership or joint venture, (iii) the Company's subsidiaries do not have
outstanding any option to purchase, or any rights or warrants to subscribe
for, or any securities or obligations convertible into, or any contracts
or commitments to issue or sell any shares of capital stock or an
ownership interest of such subsidiary, and (iv) there are no preemptive
rights or other rights to subscribe for or
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purchase any shares of the capital stock or an ownership interest of the
Company's subsidiaries.
(f) The capitalization of the Company as of December 31, 1995
is as set forth under the caption "Capitalization" in the Effective
Prospectus and the Final Prospectus, and the Company's capital stock
conforms to the description thereof contained under the caption
"Description of Securities" in the Effective Prospectus and the Final
Prospectus. All the issued shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable.
None of the issued shares of capital stock of the Company have been issued
in violation of any preemptive or similar rights. The Shares to be sold
by the Company hereunder have been duly and validly authorized and, upon
issuance and delivery and payment therefor in the manner herein described,
will be validly issued, fully paid and nonassessable. Except as set forth
in the Effective Prospectus and the Final Prospectus, (i) the Company does
not have outstanding any options to purchase, or any rights or warrants to
subscribe for, or any securities or obligations convertible into, or any
contracts or commitments to issue or sell, any shares of Common Stock and
(ii) there are no preemptive rights or other rights to subscribe for or to
purchase, or any restriction upon the transfer of, any shares of Common
Stock pursuant to the Company's certificate of incorporation, bylaws or
any agreement or other instrument to which the Company is a party or by
which it may be bound. Neither the filing of the Registration Statement
nor the offer or sale of the Shares as contemplated by this Agreement
gives rise to any rights, other than those which have been waived or
satisfied, for or relating to the registration of any shares of Common
Stock or any other securities of the Company. The Underwriters will
receive good and marketable title to the Shares to be issued and delivered
hereunder, free and clear of all liens, encumbrances, claims, security
interests, restrictions, stockholders' agreements and voting trusts
whatsoever.
(g) All offers and sales by the Company of the Company's
securities prior to the date hereof were at all relevant times duly
registered or the subject of an available exemption from the registration
requirements of the Securities Act, and were duly registered or the
subject of an available exemption from the registration requirements of
the applicable state securities or Blue Sky laws.
(h) The Company has full legal right, power and authority to
enter into this Agreement and to sell and deliver the Shares to be sold by
it to the Underwriters as provided herein, and this Agreement has been
duly authorized, executed and delivered by the Company and constitutes a
valid and binding agreement of the Company enforceable against the Company
in accordance with its terms. No consent, approval, authorization or
order of any court or governmental agency or body or third party is
required for the performance of this Agreement by the Company or the
consummation by the Company of the transactions contemplated hereby,
except such as have been obtained and such as may be required by the
National Association of Securities Dealers, Inc. ("NASD") or under the
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Securities Act or state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters. The issue
and sale of the Shares by the Company, the Company's performance of this
Agreement and the consummation of the transactions contemplated hereby
will not result in a breach or violation of, or conflict with, any of the
terms and provisions of, or constitute a default by the Company or any of
its subsidiaries under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which the Company or
any of its subsidiaries is a party or to which the Company or any of its
subsidiaries or any of their respective properties is subject, the
certificate of incorporation, bylaws or other governing instruments of the
Company or any of its subsidiaries or any statute or any judgment, decree,
order, rule or regulation of any court or governmental agency or body
applicable to the Company or any of its subsidiaries or any of their
respective properties. Neither the Company nor any of its subsidiaries is
in violation of its certificate of incorporation, bylaws or other
governing instruments or any law, administrative rule or regulation or
arbitrators' or administrative or court decree, judgment or order or in
violation or default (there being no existing state of facts which with
notice or lapse of time or both would constitute a default) in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, deed of trust,
mortgage, loan agreement, note, lease, agreement or other instrument or
permit to which it is a party or by which it or any of its properties is
or may be bound.
(i) The consolidated financial statements and the related
notes of the Company, included or incorporated by reference in the
Registration Statement, the Effective Prospectus and the Final Prospectus
present fairly the financial position, results of operations and changes
in financial position and cash flow of the Company at the dates and for
the periods to which they relate and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods indicated, except as otherwise set forth in such
financial statements or the related notes. The other financial statements
and schedules included or incorporated by reference in the Registration
Statement conform to the requirements of the Securities Act and the Rules
and Regulations and present fairly the information presented therein for
the periods shown. The financial and statistical data set forth in the
Effective Prospectus and the Final Prospectus under the captions
"Prospectus Summary," "Use of Proceeds," "Capitalization," "Business" and
"Principal and Selling Stockholders" fairly presents the information set
forth therein on the basis stated in the Effective Prospectus and the
Final Prospectus. Arthur Andersen LLP, whose reports are incorporated by
reference in the Effective Prospectus and the Final Prospectus, are
independent accountants as required by the Securities Act and the Rules
and Regulations.
(j) Subsequent to December 31, 1995, neither the Company nor
any of its subsidiaries has sustained any material loss or interference
with its business or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree,
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which is not disclosed in the Effective Prospectus and the Final
Prospectus; and subsequent to the respective dates as of which information
is given in the Registration Statement, the Effective Prospectus and the
Final Prospectus, (i) neither the Company nor any of its subsidiaries has
incurred any material liabilities or obligations, direct or contingent, or
entered into any transactions not in the ordinary course of business, and
(ii) there has not been any change in the capital stock, long-term debt,
obligations under capital leases or short-term borrowings of the Company
and its subsidiaries, or any issuance of options, warrants or rights to
purchase interests or the capital stock of the Company or its
subsidiaries, or any adverse change, or any development involving a
prospective adverse change, in the general affairs, management, business,
prospects, financial position, net worth or results of operations of the
Company or any of its subsidiaries, except in each case as described in
the Effective Prospectus and the Final Prospectus.
(k) Except as described in the Effective Prospectus and the
Final Prospectus, there is not pending, or to the knowledge of the Company
threatened, any legal or governmental action, suit, proceeding, inquiry or
investigation, to which the Company, any of its subsidiaries or any of
their officers or directors is a party, or to which the property of the
Company or any of its subsidiaries is subject, before or brought by any
court or governmental agency or body, wherein an unfavorable decision,
ruling or finding could prevent or materially hinder the consummation of
this Agreement or result in a material adverse change in the business
condition (financial or other), prospects, financial position, net worth
or results of operations of the Company or any of its subsidiaries.
(l) There are no contracts or other documents required by the
Securities Act or by the Rules and Regulations to be described in the
Registration Statement, the Effective Prospectus or the Final Prospectus
or to be filed as exhibits to the Registration Statement which have not
been described, incorporated by reference or filed as required. All such
contracts to which the Company or any of its subsidiaries is a party have
been duly authorized, executed and delivered by the Company or such
subsidiary, constitute valid and binding agreements of the Company or such
subsidiary and are enforceable against the Company or such subsidiary in
accordance with the terms thereof. The Company or such subsidiary has
performed all its obligations required to be performed by it, and is
neither in default nor has it received notice of any default or dispute
under, any such contract or other material instrument to which it is a
party or by which its property is bound or affected. To the best
knowledge of the Company, no other party under any such contract or other
material instrument to which it is a party is in default in any material
respect thereunder.
(m) Except as described in the Effective Prospectus and the
Final Prospectus, the Company and each of its subsidiaries has good and
marketable title to all real and material personal property owned by it,
free and clear of all liens, charges, encumbrances or defects, except
those reflected in the financial statements hereinabove described. The
real and personal property and buildings referred to in the Effective
Prospectus and the
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Final Prospectus which are leased from others by the Company or its
subsidiaries are held under valid, subsisting enforceable leases. The
Company or its subsidiaries owns or leases all such properties as are
necessary to their respective operations as now conducted.
(n) The Company's system of internal accounting controls is
sufficient to meet the broad objectives of internal accounting control
insofar as those objectives pertain to the prevention or detection of
errors or irregularities in amounts that would be material in relation to
the Company's financial statements.
(o) The Company and each of its subsidiaries has filed all
foreign, federal, state and local income and franchise tax returns
required to be filed through the date hereof and has paid all taxes shown
as due therefrom to the extent such taxes have become due and are not
being contested in good faith; and there is no tax deficiency that has
been, nor does the Company have knowledge of any tax deficiency which is
likely to be, asserted against the Company or any of its subsidiaries,
which if determined adversely could materially and adversely affect the
earnings, assets, affairs, business prospects or condition (financial or
other) of the Company or any of its subsidiaries.
(p) The Company and each of its subsidiaries operates its
business in conformity with all applicable statutes, common laws,
ordinances, decrees, orders, rules and regulations of governmental bodies.
The Company and each of its subsidiaries has all licenses, approvals or
consents to operate its businesses in all locations in which such
businesses are currently being operated, and the Company is not aware of
any existing or imminent matter which may materially adversely impact its
or any of its subsidiaries' operations or business prospects other than as
specifically disclosed in the Effective Prospectus and the Final
Prospectus.
(q) Neither the Company nor any of its subsidiaries has
failed to file with the applicable regulatory authorities any statements,
reports, information or forms required by all applicable laws, regulations
or orders; all such filings or submissions were in compliance with
applicable laws when filed, and no deficiencies have been asserted by any
regulatory commission, agency or authority with respect to such filings or
submissions. Neither the Company nor any of its subsidiaries has failed
to maintain in full force and effect any licenses, registrations or
permits necessary or proper for the conduct of its respective businesses,
or received any notification that any revocation or limitation thereof is
threatened or pending, and there is not to the knowledge of the Company
pending any change under any law, regulation, license or permit which
could materially adversely affect the business, operations, property or
business prospects of the Company. Neither the Company nor any of its
subsidiaries has received any notice of violation of or been threatened
with a charge of violating and is not under investigation with respect to
a possible violation of any provision of any law, regulation or order.
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(r) No labor dispute exists or is imminent with any of the
employees of the Company or any of its subsidiaries or otherwise which
could materially adversely affect the Company or any of its subsidiaries.
The Company is not aware of any existing or imminent labor disturbance by
employees of the Company or any of its subsidiaries which could be
expected to materially adversely effect the condition (financial or
otherwise), results of operations, properties, affairs, management,
business affairs or business prospects of the Company or any of its
subsidiaries.
(s) The Company and each of its subsidiaries owns the
licenses, copyrights, trademarks, service marks and trade names presently
employed by it in connection with the businesses now operated by it, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the foregoing which, alone or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, could result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company or any of
its subsidiaries.
(t) The Company and each of its subsidiaries is insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses
in which it is engaged; and neither the Company nor any of its
subsidiaries has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a comparable cost.
(u) Neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign law or regulation
relating to occupational safety and health or to the storage, handling or
transportation of hazardous or toxic materials and the Company and each of
its subsidiaries has received all permits, licenses or other approvals
required of it under applicable federal, state and foreign occupational
safety and health and environmental laws and regulations to conduct its
respective businesses, and the Company and each of its subsidiaries is in
compliance with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure to
receive required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals which
would not result in a material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or prospects of the
Company or any of its subsidiaries.
(v) Neither the Company or any of its subsidiaries nor, to
the knowledge of the Company, any director, officer, agent, employee or
other person acting on behalf of the Company or any of its subsidiaries
has (i) used, or authorized the use of, any corporate or other funds for
unlawful payments, contributions, gifts or entertainment (ii) made
unlawful expenditures relating to political activity to government
officials or others, or (iii)
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established or maintained any unlawful or unrecorded funds in violation of
any federal, state, local or foreign law or regulation, including Section
30A of the Exchange Act. Neither the Company or any of its subsidiaries
nor, to the knowledge of the Company, any director, officer, agent,
employee or other person acting on behalf of the Company or any of its
subsidiaries has accepted or received any unlawful contributions,
payments, gifts or expenditures.
(w) Except where such failures to comply or violations would
not in the aggregate have a material adverse effect on the Company or any
of its subsidiaries, the Company and each of its subsidiaries has complied
with the Immigration Reform and Control Act of 1986 and all regulations
promulgated thereunder ("IRCA") with respect to (i) the completion and
maintenance of Forms 1-9, Employment Eligibility Verification Forms, for
all of its current employees and reverification of the employment status
of any and all employees whose employment authorization documents
indicated a limited period of employment authorization; (ii) with respect
to all former employees who left the Company's or any of its subsidiaries'
employment within three years prior to the date hereof, the Company and
each of its subsidiaries has complied with IRCA with respect to the
maintenance of Forms 1-9 for at least three years or for one year beyond
the date of termination, whichever is later; (iii) the Company and each of
its subsidiaries has had no immigration violations and has employed only
individuals authorized to work in the United States and has never been the
subject of any inspection or investigation relating to its compliance with
or violation of IRCA; and (iv) it has not been warned, fined or otherwise
penalized by reason or any failure to comply with IRCA, and no such
proceeding is pending or threatened.
(x) The Company is not, will not become as a result of the
transactions contemplated hereby, and does not intend to conduct its
business in a manner that would cause it or any of its subsidiaries to
become, an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940.
(y) Neither the Company or any of its subsidiaries nor any of
the directors, officers, employees or agents of the Company or any of its
subsidiaries have taken and will not take, directly or indirectly, any
action designed to cause or result in, or which has constituted or which
might be expected to constitute, stabilization or manipulation of the
price of the Common Stock.
(z) The Shares have been approved for listing on the New York
Stock Exchange (the "NYSE") upon notice of issuance.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each
of the Selling Stockholders, severally and not jointly, represents and warrants
to, and agrees with, each of the Underwriters that:
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(a) Such Selling Stockholder at the First Closing Date or at
the Option Closing Date (as defined herein), as the case may be, will have
valid and marketable title to the Shares set forth in Schedule II to be
sold by such Selling Stockholder, free and clear of any liens,
encumbrances, equities and claims (other than as imposed by the Securities
Act or this Agreement), and full right, power and authority to effect the
sale and delivery of such Shares; and upon the delivery of and payment for
the Shares to be sold by such Selling Stockholder pursuant to this
Agreement, valid and marketable title thereto, free and clear of any
liens, encumbrances, equities and claims, will be transferred to the
Underwriters.
(b) Such Selling Stockholder has duly executed and delivered
the Custody Agreement and Power of Attorney in the form previously
delivered to the Representatives, appointing the persons named therein,
and each of them as each Selling Stockholder's attorney-in-fact (the
"Attorney-in-Fact") and as custodian (the "Custodian"). The
Attorney-in-Fact is authorized to execute, deliver and perform this
Agreement on behalf of such Selling Stockholder, to deliver the Shares to
be sold by such Selling Stockholder hereunder, to accept payment therefor
and otherwise to act on behalf of such Selling Stockholder in connection
with this Agreement. Certificates, in suitable form for transfer by
delivery or accompanied by duly executed instruments of transfer or
assignment in blank, representing the Shares to be sold by such Selling
Stockholder hereunder have been deposited with the Custodian pursuant to
the Custody Agreement and Power of Attorney for the purpose of delivery
pursuant to this Agreement. Such Selling Stockholder agrees that the
shares of Common Stock represented by the certificates on deposit with the
Custodian are subject to the interest of the Underwriters hereunder, that
the arrangements made for such custody and the appointment of the
Attorney-in-Fact are to that extent irrevocable, and that the obligations
of such Selling Stockholder hereunder shall not be terminated except as
provided in this Agreement and the Custody Agreement. If such Selling
Stockholder should die or become incapacitated or if any other event
should occur, before the delivery of the Shares of such Selling
Stockholder hereunder, the certificates for such Shares deposited with the
Custodian shall be delivered by the Custodian in accordance with the terms
and conditions of this Agreement as if such death, incapacity or other
event had not occurred, regardless of whether or not the Custodian or the
Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Stockholder, acting through his duly
authorized Attorney-in-Fact, has duly executed and delivered this
Agreement and the Custody Agreement and Power of Attorney; this Agreement
constitutes a legal, valid and binding obligation of such Selling
Stockholder, all authorizations and consents necessary for the execution
and delivery of this Agreement and the Custody Agreement and Power of
Attorney on behalf of such Selling Stockholder and for the sale and
delivery of the Shares to be sold by such Selling Stockholder hereunder
has been given, except as may be required by the Securities Act or state
securities laws; and such Selling Stockholder has the legal capacity and
full right, power and authority to execute this Agreement and the Custody
Agreement and Power of Attorney.
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(d) The performance of this Agreement and the Custody
Agreement and Power of Attorney and the consummation of the transactions
contemplated hereby and thereby by each of the Selling Stockholders will
not result in a breach or violation of, or conflict with, any of the terms
or provisions of, or constitute a default by such Selling Stockholder
under, any indenture, mortgage, deed of trust, trust (constructive or
other), loan agreement, lease, franchise, license or other agreement or
instrument to which such Selling Stockholder or any of his or its
properties is bound, any statute, or any judgment, decree, order, rule or
regulation or any court or governmental agency or body applicable to such
Selling Stockholder or any of his or its properties.
(e) Such Selling Stockholder has not distributed nor will
distribute any prospectus or other offering material in connection with
the offer and sale of the Shares other than any Preliminary Prospectus
filed with the Commission or the Final Prospectus or other material
permitted by the Securities Act.
(f) To the knowledge of such Selling Stockholder, the
representations and warranties of the Company contained in Section 1 of
this Agreement are true and correct; such Selling Stockholder has reviewed
and is familiar with the Registration Statement as originally filed with
the Commission and the Preliminary Prospectus contained therein. To the
knowledge of such Selling Stockholder, the Preliminary Prospectus does not
include an untrue statement of a material fact or omit 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; such Selling
Stockholder is not prompted to sell the Shares to be sold by such Selling
Stockholder by any information concerning the Company that is not set
forth in the Preliminary Prospectus, the Effective Prospectus or the Final
Prospectus.
(g) At the time the Registration Statement becomes effective
(i) such parts of the Registration Statement and any amendments and
supplements thereto as specifically refer to such Selling Stockholder 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 and (ii) such parts of the Effective
Prospectus and Final Prospectus as specifically refer to such Selling
Stockholder will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(h) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory body, administrative or
other governmental body is necessary in connection with the execution and
delivery of this Agreement by such Selling Stockholder, and the
consummation by him of the transactions herein contemplated (other than as
required by the Securities Act, state securities laws and the NASD).
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(i) Any certificates signed by or on behalf of such Selling
Stockholder as such and delivered to the Representatives or to counsel for
the Representatives shall be deemed a representation and warranty by such
Selling Stockholder to each Underwriter as to the matters covered thereby.
(j) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder agrees to deliver to you prior to
or at the First Closing Date (as hereinafter defined) a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof).
(k) Such Selling Stockholder has not taken, and will not
take, directly or indirectly, any action designed to cause or result in,
or which might constitute or be expected to constitute, stabilization or
manipulation of the price of the Common Stock.
3. PURCHASE, SALE AND DELIVERY OF THE SHARES.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company and the Selling Stockholders, as
set forth on Schedule II hereto, agree to sell to the several
Underwriters, and each of the Underwriters, severally and not jointly,
agrees to purchase at a purchase price of $______ per share, the number of
Firm Shares set forth opposite such Underwriter's name in Schedule I
hereto.
(b) The Company hereby grants to the Underwriters an option
to purchase 375,000 additional shares of Common Stock, solely for the
purpose of covering over-allotments in the sale of Firm Shares, all or any
portion of the Option Shares at the purchase price per share set forth
above. The option granted hereby may be exercised as to all or any part of
the Option Shares at any time within 30 days after the date of the Final
Prospectus. The Underwriters shall not be under any obligation to
purchase any Option Shares prior to the exercise of such option. The
option granted hereby may be exercised by the Underwriters by J.C.
Bradford & Co. ("Bradford") giving written notice to the Company setting
forth the number of Option Shares to be purchased and the date and time
for delivery of and payment for such Option Shares and stating that the
Option Shares referred to therein are to be used for the purpose of
covering over-allotments in connection with the distribution and sale of
the Firm Shares. If such notice is given prior to the First Closing Date
(as defined herein), the date set forth therein for such delivery and
payment shall not be earlier than two full business days thereafter or the
First Closing Date, whichever occurs later. If such notice is given on or
after the First Closing Date, the date set forth therein for such delivery
and payment shall not be earlier than three full business days thereafter.
In either event, the date so set forth shall not be more than four full
business days after the date of such notice. The date and time set forth
in such notice is herein called the "Option
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Closing Date." Upon exercise of the option, the Company shall become
obligated to sell to the Underwriters, and, subject to the terms and
conditions herein set forth, the Underwriters shall become obligated to
purchase, for the account of each Underwriter, from the Company, severally
and not jointly, the number of Option Shares specified in such notice.
Option Shares shall be purchased for the accounts of the Underwriters in
proportion to the number of Firm Shares set forth opposite such
Underwriter's name in Schedule I hereto, except that the respective
purchase obligations of each Underwriter shall be adjusted so that no
Underwriter shall be obligated to purchase fractional Option Shares.
(c) Certificates in definitive form for the Firm Shares
which each Underwriter has agreed to purchase hereunder shall be delivered
by or on behalf of the Company and the Selling Stockholders to the
Underwriters for the account of such Underwriter against payment by such
Underwriter or on its behalf of the purchase price therefor by certified
or official bank check or checks in next day funds to the order of the
Company and the custodian for the Selling Stockholders, at the offices of
Bradford, 330 Commerce Street, Nashville, Tennessee 37201, or at such
other place as may be agreed upon by Bradford and the Company, at 10:00
A.M., Nashville time, on the third full business day after this Agreement
becomes effective, or, at the election of the Representatives, on the
fourth full business day after this Agreement becomes effective, if it
becomes effective after 4:30 P.M. Eastern time, or at such other time not
later than the seventh full business day thereafter as the Representatives
and the Company may determine, such time of delivery against payment being
herein referred to as the "First Closing Date." The First Closing Date and
the Option Closing Date are herein individually referred to as the
"Closing Date" and collectively referred to as the "Closing Dates."
Certificates in definitive form for the Option Shares which each
Underwriter shall have agreed to purchase hereunder shall be similarly
delivered by or on behalf of the Company on the Option Closing Date. The
certificates in definitive form for the Shares to be delivered will be in
good delivery form and in such denominations and registered in such names
as Bradford may request not less than 48 hours prior to the First Closing
Date or the Option Closing Date, as the case may be. Such certificates
will be made available for checking and packaging at a location in New
York, New York as may be designated by Bradford, at least 24 hours prior
to the First Closing Date or the Option Closing Date, as the case may be.
It is understood that Bradford may (but shall not be obligated to) make
payment on behalf of any Underwriter or Underwriters for the Shares to be
purchased by such Underwriter or Underwriters. No such payment shall
relieve such Underwriter or Underwriters from any of its or their
obligations hereunder.
4. OFFERING BY THE UNDERWRITERS. After the Registration Statement
becomes effective, the several Underwriters propose to offer for sale to
the public the Firm Shares and any Option Shares which may be sold at the
price and upon the terms set forth in the Final Prospectus.
5. COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDERS.
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(a) The Company covenants and agrees with each of the
Underwriters that:
(i) The Company shall comply with the provisions of
and make all requisite filings with the Commission pursuant to Rules 424
and 430A of the Rules and Regulations and shall notify the Representatives
promptly (in writing, if requested) of all such filings. The Company
shall notify the Representatives promptly of any request by the Commission
for any amendment of or supplement to the Registration Statement, the
Effective Prospectus or the Final Prospectus or for additional
information; the Company shall prepare and file with the Commission,
promptly upon the Representatives' request, any amendments of or
supplements to the Registration Statement, the Effective Prospectus or the
Final Prospectus which, in the Representatives' opinion, may be necessary
or advisable in connection with the distribution of the Shares; and the
Company shall not file any amendment of or supplement to the Registration
Statement, the Effective Prospectus or the Final Prospectus which is not
approved by the Representatives after reasonable notice thereof. The
Company shall advise the Representatives promptly of the issuance by the
Commission or any jurisdiction or other regulatory body of any stop order
or other order suspending the effectiveness of the Registration Statement,
suspending or preventing the use of any Preliminary Prospectus, the
Effective Prospectus or the Final Prospectus or suspending the
qualification of the Shares for offering or sale in any jurisdiction, or
of the institution of any proceedings for any such purpose; and the
Company shall use its best efforts to prevent the issuance of any stop
order or other such order and, should a stop order or other such order be
issued, to obtain as soon as possible the lifting thereof.
(ii) The Company will take or cause to be taken all
necessary action and furnish to whomever the Representatives direct such
information as may be reasonably required in qualifying the Shares for
offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Underwriters may designate and will continue such qualifications in
effect for as long as may be reasonably necessary to complete the
distribution of the Shares.
(iii) Within the time during which a Final Prospectus
relating to the Shares is required to be delivered under the Securities
Act, the Company shall comply with all requirements imposed upon it by the
Securities Act, as now and hereafter amended, and by the Rules and
Regulations, as from time to time in force, so far as is necessary to
permit the continuance of sales of or dealings in the Shares as
contemplated by the provisions hereof and the Final Prospectus. If during
such period any event occurs as a result of which the Final Prospectus as
then amended or supplemented would include 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 then existing, not
misleading, or if during such period it is necessary to amend the
Registration Statement or supplement the Final Prospectus to comply with
the Securities Act, the Company shall promptly notify the Representatives
and shall amend the Registration Statement or supplement the Final
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Prospectus (at the expense of the Company) so as to correct such
statement or omission or effect such compliance.
(iv) The Company will furnish without charge to the
Representatives and make available to the Underwriters copies of the
Registration Statement (four of which shall be signed and shall be
accompanied by all exhibits, including any which are incorporated by
reference, which have not previously been furnished), each Preliminary
Prospectus, the Effective Prospectus and the Final Prospectus, and all
amendments and supplements thereto, including any prospectus or
supplement prepared after the effective date of the Registration
Statement, in each case as soon as available and in such quantities as
the Underwriters may reasonably request.
(v) The Company will (A) deliver to the
Representatives at such office or offices as the Representatives may
designate as many copies of the Preliminary Prospectus and Final
Prospectus as the Representatives may reasonably request, and (B) for a
period of not more than nine months after the Registration Statement
becomes effective, send to the Underwriters as many additional copies of
the Final Prospectus and any supplement thereto as the Representatives may
reasonably request.
(vi) The Company shall make generally available to
its security holders, in the manner contemplated by Rule 158(b) under the
Securities Act as promptly as practicable and in any event no later than
45 days after the end of its fiscal quarter in which the first anniversary
of the effective date of the Registration Statement occurs, an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act
covering a period of at least 12 consecutive months beginning after the
effective date of the Registration Statement.
(vii) The Company will apply the net proceeds from the
sale of the Shares to be sold by it as set forth under the caption "Use of
Proceeds" in the Final Prospectus.
(viii) During a period of five years from the effective
date of the Registration Statement or such longer period as the
Representatives may reasonably request, the Company will furnish to the
Representatives copies of all reports and other communications (financial
or other) furnished by the Company to its stockholders and, as soon as
available, copies of any reports or financial statements furnished or
filed by the Company to or with the Commission or any national securities
exchange on which any class of securities of the Company may be listed.
(ix) The Company will, from time to time, after the
effective date of the Registration Statement file with the Commission such
reports as are required by the Securities Act, the Exchange Act and the
Rules and Regulations, and shall also file with foreign, state and other
governmental securities commissions in jurisdictions where the
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Shares have been sold by the Underwriters (as the Representatives shall
have advised the Company in writing) such reports as are required to be
filed by the securities acts and the regulations of those states.
(x) Except pursuant to this Agreement or with the
Representatives' written consent, for a period of 120 days from the
effective date of the Registration Statement, the Company will not, and
the Company has provided agreements executed by each of its executive
officers, directors and the Selling Stockholders providing that for a
period of 120 days from the effective date of the Registration Statement,
such person or entity will not, offer for sale, sell (other than the
issuance by the Company of Common Stock pursuant to the exercise of
options granted pursuant to existing employee benefit plans and
agreements, other existing compensation agreements and existing stock
options or outstanding warrants or securities convertible into Common
Stock), grant any options (other than pursuant to existing employee
benefit plans and agreements), rights or warrants with respect to any
shares of Common Stock, securities convertible into Common Stock or any
other capital stock of the Company, or otherwise dispose of, directly or
indirectly, any shares of Common Stock or such other securities or capital
stock.
(xi) Neither the Company or any of its subsidiaries
nor any of their officers, directors or affiliates will take, directly or
indirectly, any action designed to cause or result in, or which might
constitute or be expected to constitute, stabilization or manipulation of
the price of the Common Stock.
(xii) The Company and each of its subsidiaries will
either conduct its business and operations as described in the Final
Prospectus or, if the Company or any of its subsidiaries makes any
material change to its business or operations as so conducted, promptly
disclose such change generally to the Company's securityholders.
(b) Each of the Selling Stockholders, severally and not
jointly, covenants and agrees with the Underwriters that:
(i) Such Selling Stockholder will not take, directly
or indirectly, any action designed to cause or result in, or which might
constitute or be expected to constitute, stabilization or manipulation of
the price of the Common Stock.
6. EXPENSES. The Company and each of the Selling Stockholders
agree with the Underwriters that (a) whether or not the transactions
contemplated by this Agreement are consummated or this agreement becomes
effective or is terminated, the Company will pay all fees and expenses incident
to the performance of the obligations of the Company and the Selling
Stockholders hereunder, including, but not limited to, (i) the Commission's
registration fee, (ii) the expenses of pringing (or reproduction) and
distributing the Registration Statement (including the Financial statements
therein and all amendments and exhibits thereto), each Preliminary Prospectus,
the Effective Prospectus, the Final Prospectus, any amendments or supplements
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thereto, any Marketing Marerials (as defined herein) and this Agreement and
other underwriting documents, including Underwriter's Questionnaires,
Underwriter's Powers of Attorney, Blue Sky Memoranda, Agreements Among
Underwriters and Selected Dealer Agreements, (iii) fees and expenses of
accountants and counsel for the Company, (iv) expenses of registration or
qualification of the Shares under state Blue Sky and securities laws, including
the fees and disbursements of counsel to the Underwrtiers in connection
therewith, (v) filing fees paid or incurred by the Underwriters in connection
with filings with the NASD, (vi) expenses of listing the Shares on the NYSE,
(vii) all travel, lodging and reasonable living expenses incurred by the Company
in connection with marketing, dealer and other meedings attended by the Company
and the Underwriters in marketing the Shares, (viii) the costs and charges of
the Company's transfer agent and resigtrar and the cost of preparing the
certificates for the Shares, and (ix) all other costs and expenses incident to
the performance of theri obligations hereunder not otherwise provided for in
this section; and (b) all out-of-pocket expenses, incluidng counsel fees,
disbursements and expenses, incurred by the Underwriters in conneciton with
investigating, preparing to market and marketing the Shares and proposing to
purchase and purchasing the Shares under this agreement, will be borne and paid
by the Company if the sale of the Shares provided for herein is not consummated
(i) by reason of the termination of this Agreement by the Company pursuant to
Section 14(a)(i) or (ii) by reason of the termination of this Agreement by the
Representatives pursuant to Section 14(b)(ii), (iii), (iv) or (v) of this
Agreement.
The provisions of this section shall not affect any agreement that
the Company and the Selling Stockholders may have for the sharing of such costs
and expenses; provided, however, the Underwriters may deem the Company to be the
primary obligor with respect to all costs, fees, and expenses to be paid by the
Company and the Selling Stockholders.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters to purchase and pay for the Firm Shares shall
be subject, in their discretion, to the accuracy of the representations and
warranties of the Company and the Selling Stockholders herein as of the date
hereof and as of the Closing Date as if made on and as of the Closing Date, to
the accuracy of the statements of the Company's Officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of all of their covenants and agreements hereunder and to the
following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective not later than 5:30 P.M.,
Washington, D.C. time, on the day following the date of this Agreement, or
such later time and date as shall have been consented to by the
Representatives and all filings required by Rule 424 and Rule 430A of the
Rules and Regulations shall have been made; no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened or,
to the knowledge of the Company or the Underwriters, shall be contemplated
by the Commission; any request of the Commission for additional
information (to be included in the Registration Statement or the Final
Prospectus or otherwise) shall have been complied with to the
Representative's
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satisfaction; and the NASD, upon review of the terms of the public
offering of the Shares, shall not have objected to such offering, such
terms or the Underwriters' participation in the same.
(b) No Underwriter shall have advised the Company that the
Registration Statement, Preliminary Prospectus, the Effective Prospectus
or Final Prospectus, or any amendment or any supplement thereto, contains
an untrue statement of fact which, in the Representatives' reasonable
judgment, is material, or omits to state a fact which, in the
Representatives' reasonable judgment, is material and is required to be
stated therein or necessary to make the statements therein not misleading
and the Company shall not have cured such untrue statement of fact or
stated a statement of fact required to be stated therein.
(c) The Representatives shall have received an opinion, dated
the Closing Date, from Stokes & Bartholomew, P.A., counsel for the
Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the State of
Delaware, with corporate power and authority to own its properties
and conduct its business as now conducted, and is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions where the failure to so qualify would have a material
adverse effect upon the Company and its subsidiaries. The Company
holds all licenses, certificates, permits, franchises and
authorizations from governmental authorities necessary for the
conduct of its business.
(ii) Each of the Company's subsidiaries is validly
existing and in good standing under the laws of the state or
jurisdiction of its incorporation or organization, as the case may
be, with power and authority to own its properties and conduct it
business as now conducted, and is duly qualified or authorized to
do business and is in good standing in all other jurisdictions
where the failure to so qualify would have a material adverse
effect upon the business of the Company and its subsidiaries. The
outstanding stock of each of the Company's corporate subsidiaries
is duly authorized, validly issued, fully paid and nonassessable.
Except as set forth in Exhibit 1(e) hereto, the Company owns all of
the outstanding stock of each of the Company's corporate
subsidiaries, free and clear of all liens, encumbrances, equities
and claims. The partnership and joint venture interests of each of
the partnerships and joint ventures in which the Company or any
subsidiary is a partner or joint venturer are duly authorized,
validly issued, fully paid and nonassessable and the partnership
and joint venture interests owned by the Company or a subsidiary
thereof are owned clear of any lien, encumbrance, pledge, equity or
claim of any kind. Except as set forth on Exhibit 1(e) hereto, the
Company's subsidiaries do not have outstanding any options to
purchase, or any rights or warrants to subscribe for, or any
securities or obligations convertible into,
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or any contracts or commitments to issue or sell any shares of
capital stock or an ownership interest of such subsidiary and there
are no preemptive rights or other rights to subscribe for or
purchase any shares of the capital stock or any ownership interest
of the Company's subsidiaries. Each of the Company's subsidiaries
holds all licenses, certificates, permits, franchises and
authorizations from governmental authorities necessary for the
conduct of its business.
(iii) As of the dates specified therein, the Company
had authorized and issued capital stock as set forth under the
caption "Capitalization" in the Final Prospectus. All of the
outstanding shares of Common Stock (including the shares to be sold
by the Selling Stockholders) have been duly authorized and are
validly issued, fully paid and nonassessable, and the Shares to be
sold by the Company have been duly authorized, and upon issuance
thereof and payment therefor as provided herein, will be validly
issued, fully paid and nonassessable; none of the issued shares have
been issued in violation of or subject to any preemptive rights
provided for by law, agreement or the Company's certificate of
incorporation. The Company does not have outstanding any options to
purchase, or any rights or warrants to subscribe for, or any
securities or obligations convertible into, or any contracts or
commitments to issue or sell any shares of capital stock, and there
are no preemptive rights or other rights to subscribe for or
purchase any shares of the capital stock of the Company, or any
restriction upon the transfer of, the Shares pursuant to the
Company's certificate of incorporation or bylaws or any agreement or
other instrument to which the Company is a party or by which it may
be bound, except as described in the Effective Prospectus and Final
Prospectus. Neither the filing of the Registration Statement nor the
offer or sale of the Shares as contemplated by this Agreement gives
rise to any rights, other than those which have been waived or
satisfied, for or relating to the registration of any shares of
Common Stock or any other securities of the Company. The
Underwriters will receive good and marketable title to the Shares to
be issued and delivered by the Company pursuant to this Agreement,
free and clear of all liens, encumbrances, claims, security
interests, restrictions, stockholders agreements and voting trusts
whatsoever. The capital stock of the Company and the Shares conform
to the description thereof contained in the Final Prospectus. All
offers and sales of the Company's interests and securities prior to
the date hereof were at all relevant times duly registered or exempt
from the registration requirements of the Securities Act and were
duly registered or the subject of an exemption from the registration
requirements of applicable state securities or Blue Sky laws.
(iv) No consent, approval, authorization or order of
any court or governmental agency or body or third party is required
for the performance of this Agreement by the Company or the
consummation by the Company of the transactions contemplated hereby,
except such as have been obtained under the Securities Act and such
as may be required by the NASD and under state securities
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or Blue Sky laws in connection with the purchase and distribution of
the Shares by the several Underwriters, as to which such counsel
need not express an opinion. The performance of this Agreement by
the Company and the consummation by the Company of the transactions
contemplated hereby will not conflict with or result in a breach or
violation by the Company of any of the terms or provisions of, or
constitute a default by the Company under, any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument known to such counsel to which the Company or any of its
subsidiaries is a party or to which the Company or any of its
subsidiaries or their properties is subject, the certificate of
incorporation or bylaws of the Company or any of its subsidiaries,
any statute, or any judgment, decree, order, rule or regulation of
any court or governmental agency or body known to such counsel to be
applicable to the Company or any of their subsidiaries or their
properties.
(v) The Company has full legal right, power and
authority to enter into this Agreement and to issue, sell and
deliver the Shares to be sold by it to the Underwriters as provided
herein, and this Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and legally
binding obligation of the Company enforceable against the Company in
accordance with its terms.
(vi) Except as described in the Final Prospectus,
there is not pending or, to the best knowledge of such counsel,
threatened any action, suit, proceeding, inquiry or investigation,
to which the Company or any of its subsidiaries is a party, or to
which the property of the Company or any of its subsidiaries is
subject, before or brought by any court or governmental agency or
body, which, if determined adversely to the Company or any of its
subsidiaries, could result in any material adverse change in the
business, financial position, net worth or results of operations, or
could materially adversely affect the properties or assets, of the
Company or any of its subsidiaries.
(vii) No default exists, and no event has occurred
which with notice or after the lapse of time to cure or both, would
constitute a default, in the due performance and observance of any
term, covenant or condition of any material indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or
instrument known to such counsel to which the Company or any of its
subsidiaries is a party or to which its properties are subject, or
of the certificate of incorporation or bylaws of the Company or any
of its subsidiaries.
(viii) Neither the Company nor any of its subsidiaries
is in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any
decree of any court or governmental agency or body having
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jurisdiction over the Company or any of its subsidiaries which would
have a material adverse effect on the Company or any of its
subsidiaries.
(ix) The Registration Statement and all
post-effective amendments thereto have become effective under the
Securities Act, and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
are threatened, pending or contemplated by the Commission. All
filings required by Rule 424 and Rule 430A of the Rules and
Regulations have been made; the Registration Statement, the
Effective Prospectus and Final Prospectus, and any amendments or
supplements thereto, as of their respective effective or issue
dates, complied as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations;
the descriptions in the Registration Statement, the Effective
Prospectus and the Final Prospectus of statutes, regulations, legal
and governmental proceedings, and contracts and other documents are
accurate in all material respects and present fairly in all material
respects the information required to be stated; and such counsel
does not know of any pending or threatened legal or governmental
proceedings, statutes or regulations required to be described in the
Final Prospectus which are not described as required nor of any
contracts or documents of a character required to be described in
the Registration Statement or the Final Prospectus or to be filed as
exhibits to the Registration Statement which are not described and
filed as required.
In addition to the matters set forth above, such opinion shall also
include a statement to the effect that nothing has come to the attention of
such counsel which leads them to believe that the Registration Statement, the
Effective Prospectus and the Final Prospectus or any amendment or supplement
thereto contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made
(except that such counsel need express no view as to financial statements,
schedules and other financial or statistical information included, or
incorporated by reference therein).
(d) The Representatives shall have received an opinion, dated
the Closing Date, of counsel for the Selling Stockholders, reasonably
acceptable to the Representatives, to the effect that:
(i) This Agreement and the Custody Agreement and
Power of Attorney have been duly executed and delivered by or on
behalf of each of the Selling Stockholders and constitute valid and
binding agreements of such Selling Stockholders in accordance with
their terms.
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(ii) The sale of the Shares to be sold by each
Selling Stockholder hereunder and the compliance by such Selling
Stockholder with all of the provisions of this Agreement, the
Custody Agreement and the Power of Attorney and the consummation
of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any terms or
provisions of, or constitute a default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Selling Stockholder is a party or by which
such Selling Stockholder is bound or to which any of the property
or assets of such Selling Stockholder is subject, or any statute,
order, rule or regulation of any court or governmental agency or
body applicable to such Selling Stockholder or the property of such
Selling Stockholder.
(iii) No consent, approval, authorization or order
of any court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement in
connection with the Shares to be sold by each Selling Stockholder
hereunder, except which have been duly obtained and in full force
and effect, such as have been obtained under the Securities Act and
such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of such Shares by the
Underwriters, as to which such counsel need express no opinion.
(iv) Each of the Selling Stockholders has full
right, power and authority to sell, transfer and deliver such
Shares pursuant to this Agreement. By delivery of a certificate or
certificates therefor, the Selling Stockholders will transfer to
the Underwriters valid and marketable title to such shares, free
and clear of any pledge, lien, security interest, charge, claim,
equity, or encumbrance of any kind.
The opinions to be rendered pursuant to paragraphs (c) and (d) may be
limited to federal law, and as to foreign and state law matters, to the laws of
the states or jurisdictions in which such counsel is admitted to practice.
Such counsel may rely upon opinions of other counsel in rendering such opinions
provided that such counsel shall state that they believe that both the
Representatives and they are justified in relying upon such opinions and that
such counsel is reasonably satisfactory to you.
(e) The Underwriters shall have received an opinion or opinions,
dated the Closing Date, of Bass, Berry & Sims PLC, counsel for the
Underwriters, with respect to the Registration Statement and the Final
Prospectus, and such other related matters as the Underwriters may
require, and the Company shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling them
to pass upon such matters.
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(f) The Representatives shall have received from Arthur
Andersen LLP, a letter dated the date hereof and, at the Closing Date,
a second letter dated the Closing Date, in form and substance
satisfactory to the Representatives, stating that they are independent
public accountants with respect to the Company within the meaning of the
Securities Act and the applicable Rules and Regulations, and to the
effect that:
(i) In their opinion, the consolidated financial
statements and schedules examined by them and included
or incorporated by reference in the Registration Statement comply
as to form in all material respects with the applicable accounting
requirements of the Securities Act and the published Rules and
Regulations and are presented in accordance with generally accepted
accounting principles; and they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the interim consolidated financial
statements, selected financial data and/or condensed financial
statements derived from audited financial statements of the
Company;
(ii) The unaudited selected consolidated financial
information included in the Preliminary Prospectus and the
Final Prospectus under the caption "PROSPECTUS SUMMARY" for the
three years ended December 31, 1995, agrees with the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the Final Prospectus or previously
reported on by them;
(iii) On the basis of a reading of the latest available
interim financial statements (unaudited) of the Company and its
subsidiaries, a reading of the minute books of the Company and its
subsidiaries, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and
other specified procedures, all of which have been agreed to by the
Representatives, nothing came to their attention that caused them
to believe that:
(A) The amounts included in the Preliminary
Prospectus and the Final Prospectus under the caption
"PROSPECTUS SUMMARY" for the three years ended December 31,
1995 do not agree with the corresponding amounts in the
audited consolidated financial statements included or
incorporated by reference in the Final Prospectus or
previously reported on by them;
(B) The unaudited consolidated financial
statements included or incorporated by reference in the
Registration Statement, including the amounts included under
the caption "PROSPECTUS SUMMARY -- RECENT DEVELOPMENTS," do
not comply as to form in all material respects with the
accounting requirements of the federal securities laws and
the related published rules and regulations thereunder or are
not in
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conformity with generally accepted accounting principles
applied on a basis substantially consistent with the basis
for the audited financial statements contained or
incorporated by reference in the Registration Statement;
(C) Any other unaudited consolidated financial
statement data included in the Final Prospectus do not
agree with the corresponding items in the audited
consolidated financial statements from which data was derived
and any such unaudited data were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited financial statements contained or
incorporated by reference in the Final Prospectus;
(D) at a specified date not more than five days
prior to the date of delivery of such respective
letter, there was any change in the capital stock, decline in
total assets or stockholders' equity or increase in long-term
debt of the Company and its subsidiaries, in each case as
compared with amounts shown in the latest balance sheets
included in the Final Prospectus, except in each case for
changes, decreases or increases which are described in such
letters; and
(E) for the period from the closing date of
the latest statements of earnings included in the Effective
Prospectus and the Final Prospectus to a specified date not
more than five days prior to the date of delivery of such
respective letter, there were any decreases in revenues,
net income and net income per share of the Company, in each
case as compared with the corresponding period of the
preceding year, except in each case for decreases which are
described in such letter.
(iv) They have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts,
percentages and financial information specified by you which are
derived from the general accounting records of the Company and its
subsidiaries, which appear in the Effective Prospectus and the
Final Prospectus and have compared and agreed such amounts,
percentages and financial information with the accounting records
of the Company and its subsidiaries or to analyses and schedules
prepared by the Company and its subsidiaries from its detailed
accounting records.
In the event that the letters to be delivered referred to above set forth
any such changes, decreases or increases, it shall be a further condition
to the obligations of the Underwriters that the Underwriters shall have
determined, after discussions with officers of the Company responsible
for financial and accounting matters and with Arthur Andersen LLP, that
such changes, decreases or increases as are set forth in such letters do
not reflect a material adverse change in the total assets, stockholders'
equity or long-term debt of the
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Company as compared with the amounts shown in the latest balance sheets
of the Company included in the Final Prospectus, or a material adverse
change in revenues or net income of the Company, in each case as compared
with the corresponding period of the prior year.
(g) There shall have been furnished to the Representatives a
certificate, dated the Closing Date and addressed to you, signed by the
Chief Executive Officer and by the Chief Financial Officer of the Company
to the effect that:
(i) the representations and warranties of the Company in
Section 1 of this Agreement are true and correct, as if made at
and as of the Closing Date, and the Company has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for
that purpose have been initiated or are pending, or to their
knowledge, threatened under the Securities Act;
(iii) all filings required by Rule 424 and Rule 430A of the
Rules and Regulations have been made;
(iv) they have carefully examined the Registration
Statement, the Effective Prospectus and the Final Prospectus,
and any amendments or supplements thereto, and such documents do
not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances under which they were made; and
(v) since the effective date of the Registration Statement,
there has occurred no event required to be set forth in an
amendment or supplement to the Registration Statement, the
Effective Prospectus or the Final Prospectus which has not been so
set forth.
(h) The representations and warranties of each Selling
Stockholder shall be true and correct as of the Closing Date, and each
such Selling Stockholder shall deliver to the Representatives a
certificate to that effect, dated the Closing Date, signed by each such
Selling Stockholder or his duly appointed Attorney-in-Fact.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, and
except as stated therein, the Company has not sustained any material loss
or interference with its business or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any court or governmental action,
order or decree, or become a party to or the subject of any litigation
which is material to the Company, nor shall there have
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been any material adverse change, or any development involving a
prospective material adverse change, in the business, properties, key
personnel, capitalization, prospects, net worth, results of operations or
condition (financial or other) of the Company, which loss, interference,
litigation or change, in the Representatives' reasonable judgment shall
render it unadvisable to commence or continue the offering of the Shares
at the offering price to the public set forth on the cover page of the
Prospectus or to proceed with the delivery of the Shares.
(j) The shares shall be listed on the NYSE.
All such opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory to the Representatives and their counsel. The Company
shall furnish to the Representatives such conformed copies of such opinions,
certificates, letters and documents in such quantities as the Representatives
shall reasonably request.
The respective obligations of the Underwriters to purchase and pay for the
Option Shares shall be subject, in their discretion, to each of the foregoing
conditions to purchase the Firm Shares, except that all references to the
"Closing Date" shall be deemed to refer to the Option Closing Date, if it shall
be a date other than the Closing Date.
8. CONDITION OF THE COMPANY'S AND THE SELLING STOCKHOLDERS'
OBLIGATIONS. The obligations hereunder of the Company and the Selling
Stockholders are subject to the condition set forth in Section 7(a) hereof.
9. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Selling Stockholders, jointly and
severally, agree to indemnify and hold harmless each Underwriter, and
each person, if any, who controls any Underwriter within the meaning of
the Securities Act, against any losses, claims, damages or liabilities to
which such Underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based in
whole or in part upon: (i) any inaccuracy in the representations and
warranties of the Company or the Selling Stockholders contained herein;
(ii) any failure of the Company or the Selling Stockholders to perform
their obligations hereunder or under law; (iii) any untrue statement or
alleged untrue statement of any material fact contained in (A) the
Registration Statement, any Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or supplement thereto,
(B) any audio or visual materials supplied by the Company expressly for
use in connection with the marketing of the Shares, including without
limitation, slides, videos, films and tape recordings (the "Marketing
Materials") or (C) in any Blue Sky application or other written
information furnished by the Company or the Selling Stockholders filed in
any state or other jurisdiction in order to qualify any or all
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of the Shares under the securities laws thereof (a "Blue Sky
Application"); or (iv) the omission or alleged omission to state in the
Registration Statement, any Preliminary Prospectus, the Effective
Prospectus or Final Prospectus or any amendment or supplement thereto,
any Marketing Materials or Blue Sky Application a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and will reimburse each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating
or defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that neither the Company nor
the Selling Stockholders will be liable in any such case to the extent
that any such loss, claim, damage, or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, the Preliminary
Prospectus, the Effective Prospectus or Final Prospectus, or any
amendment or supplement thereto, or any Marketing Materials or Blue Sky
Application in reliance upon and in conformity with written information
furnished to the Company by any Underwriter specifically for use therein
(it being understood that the only information so provided is the
information included in the last paragraph on the cover page and in the
first and third paragraphs under the caption "Underwriting" in any
Preliminary Prospectus and the Final Prospectus and the Effective
Prospectus). Notwithstanding the foregoing provisions of this Section 9,
the parties agree that the indemnification obligations of each Selling
Stockholder under this Section 9, with respect to any matter that such
Selling Stockholder and the Company are both required to indemnify the
Underwriters hereunder, shall be subject to the determination by the
Representatives, on behalf of the Underwriters, that, in the
Representatives' reasonable commercial judgment, the Company is or may be
unable to discharge fully its obligations to the Underwriters hereunder;
provided, however, that such Selling Stockholder shall be liable in any
such case only to the extent of the total net proceeds (before deducting
expenses) received from the Underwriters by such Selling Stockholder in
connection with the sale of the Shares hereunder. To the extent the
Company is or may be able, in the Representatives' reasonable commercial
judgment, to discharge the Company's obligations to the Underwriters with
respect to any matter that the Company is required to indemnify the
Underwriters hereunder, the Underwriters shall to such extent, first seek
indemnification from the Company.
(b) Each Underwriter will indemnify and hold harmless the Selling
Stockholders and the Company, each of its directors, each of its officers
who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of the Securities Act against any
losses, claims, damages or liabilities to which the Company or any such
director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus,
the Effective Prospectus or Final Prospectus, or any amendment or
supplement thereto, any Marketing Materials or any Blue Sky Application,
or arise out
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of or are based upon the omission or the alleged omission to state in
the Registration Statement, any Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or supplement
thereto, any Marketing Materials or any Blue Sky Application a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
specifically for use therein (it being understood that the only
information so provided is the information included in the last paragraph
on the cover page and in the first and third paragraphs under the caption
"Underwriting" in any Preliminary Prospectus and in the Effective
Prospectus and the Final Prospectus);
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, including
governmental proceedings, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 9 notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than
under this Section 9. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section 9 for any
legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation except that the indemnified party shall have the right to
employ separate counsel if, in the indemnified party's reasonable
judgment, it is advisable for the indemnified party to be represented by
separate counsel, and in that event the fees and expenses of
separate counsel shall be paid by the indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the
preceding part of this Section 9 is for any reason held to be unavailable
to the Underwriters, the Company or the Selling Stockholders or is
insufficient to hold harmless an indemnified party, then the Company and
the Selling Stockholders shall contribute to the damages paid by the
Underwriters, and the Underwriters shall contribute to the damages paid
by the Company and the Selling Stockholders; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
In determining the amount of contribution to which the respective parties
are entitled, there shall be considered the relative benefits received by
each party from the offering of the Shares (taking into account the
portion of the proceeds of the offering realized by each), the
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parties' relative knowledge and access to information concerning the
matter with respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission, and any other equitable
considerations appropriate under the circumstances. The Company, the
Selling Stockholders and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro rata
or per capita allocation (even if the Underwriters were treated as one
entity for such purpose). No Underwriter or person controlling such
Underwriter shall be obligated to make contribution hereunder which in
the aggregate exceeds the underwriting discount applicable to the Shares
purchased by such Underwriter under this Agreement, less the aggregate
amount of any damages which such Underwriter and its controlling persons
have otherwise been required to pay in respect of the same or any similar
claim. The Underwriters' obligations to contribute hereunder are several
in proportion to their respective underwriting obligations and not joint.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act shall
have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, shall have the
same rights to contribution as the Company.
(e) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any
indemnified party is a party or is (or would be, if a claim were to be
made against such indemnified party) entitled to indemnity hereunder,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
10. DEFAULT OF UNDERWRITERS. If any underwriter defaults in its
obligation to purchase Shares hereunder and if the total number of Shares which
such defaulting Underwriter agreed but failed to purchase is ten percent or
less of the total number of Shares to be sold hereunder, the non-defaulting
Underwriters shall be obligated severally to purchase (in the respective
proportions which the number of Shares set forth opposite the name of each
non-defaulting Underwriter in Schedule I hereto bears to the total number of
Shares set forth opposite the names of all the non-defaulting Underwriters),
the Shares which such defaulting Underwriter or Underwriters agreed but failed
to purchase. If any Underwriter so defaults and the total number of Shares
with respect to which such default or defaults occur is more than ten percent
of the total number of Shares to be sold hereunder, and arrangements
satisfactory to the other Underwriters, the Company and the Selling
Stockholders for the purchase of such Shares by other persons (who may include
the non-defaulting Underwriters) are not made within 36 hours after such
default, this agreement, insofar as it relates to the sale of the Shares, will
terminate without liability on the part of the non-defaulting Underwriters or
the Company except for (i) the provisions of Section 9 hereof, and (ii) the
expenses to be paid or reimbursed by the Company and the Selling Stockholders
pursuant to Section 6. As used in this Agreement, the term "Underwriter"
includes any person substituted
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for an Underwriter under this Section 10. Nothing herein shall relieve a
defaulting Underwriter from liability for its default.
11. DEFAULT BY THE SELLING STOCKHOLDERS. if the selling stockholders
shall fail to sell and deliver the number of firm shares that the selling
stockholders are obligated to sell, the representatives may, at their option,
by notice to the company, either (a) require the company to sell and deliver
such number of shares of common stock as to which the selling stockholders have
defaulted, or (b) elect to purchase the firm shares and the option shares that
the company and the non-defaulting selling stockholders have agreed to sell
pursuant to this agreement.
In the event of a default under this Section that does not result in the
termination of this Agreement, either the Representatives or the Company shall
have the right to postpone the First Closing Date or Option Closing Date for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
No action taken pursuant to this Section shall relieve the Company or the
Selling Stockholder so defaulting from liability, if any, in respect of such
default.
12. SURVIVAL CLAUSE. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Selling
Stockholders, the Company, its officers and the Underwriters set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (a) any
investigation made by or on behalf of the Company, any of its officers or
directors, any Underwriter or any controlling person, (b) any termination of
this Agreement and (c) delivery of and payment for the Shares.
13. EFFECTIVE DATE. This agreement shall become effective at whichever
of the following times shall first occur: (i) at 11:30 A.M., Washington, D.C.
time, on the next full business day following the date on which the
Registration Statement becomes effective or (ii) at such time after the
Registration Statement has become effective as the Representatives shall
release the Firm Shares for sale to the public; provided, however, that the
provisions of Sections 6, 9, 12 and 13 hereof shall at all times be effective.
For purposes of this Section 13, the Firm Shares shall be deemed to have been
so released upon the release by the Representatives for publication, at any
time after the Registration Statement has become effective, of any newspaper
advertisement relating to the Firm Shares or upon the release by the
Representatives of telegrams offering the Firm Shares for sale to securities
dealers, whichever may occur first.
14. TERMINATION.
(a) The Company's obligations under this Agreement may be
terminated by the Company by notice to the Representatives (i) at any
time before it becomes effective in accordance with Section 13 hereof, or
(ii) in the event that the condition set forth in Section 8 shall not
have been satisfied at or prior to the First Closing Date.
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(b) This Agreement may be terminated by the Representatives by
notice to the Company (i) at any time before it becomes effective in
accordance with Section 13 hereof; (ii) in the event that at or prior to
the First Closing Date the Company or any Selling Stockholder shall have
failed, refused or been unable to perform any agreement on the part of
the Company or such Selling Stockholder to be performed hereunder or any
other condition to the obligations of the Underwriters hereunder is not
fulfilled; (iii) if at or prior to the Closing Date trading in securities
on the NYSE, the American Stock Exchange or the over-the-counter market
shall have been suspended or materially limited or minimum or maximum
prices shall have been established on either of such exchanges or such
market, or a banking moratorium shall have been declared by Federal or
state authorities; (iv) if at or prior to the Closing Date trading in
securities of the Company shall have been suspended; or (v) if there
shall have been such a material adverse change in general economic,
political or financial conditions or if the effect of international
conditions on the financial markets in the United States shall be such
as, in your reasonable judgment, makes it inadvisable to commence or
continue the offering of the Shares at the offering price to the public
set forth on the cover page of the Prospectus or to proceed with the
delivery of the Shares.
(c) Termination of this Agreement pursuant to this Section 14
shall be without liability of any party to any other party other than
as provided in Sections 6 and 9 hereof.
15. NOTICES. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be mailed or delivered or telegraphed
and confirmed in writing to the Representatives in care of J. C. Bradford &
Co., J. C. Bradford Financial Center, 330 Commerce Street, Nashville, Tennessee
37201, Attention: Catherine Gemmato-Smith, or if sent to the Company shall be
mailed, delivered or telegraphed and confirmed in writing to the Company at 102
Woodmont Boulevard, Suite 800, Nashville, Tennessee 37205, Attention: Doctor
R. Crants.
16. MISCELLANEOUS. This Agreement shall inure to the benefit of and be
binding upon the several Underwriters, the Company and the Selling Stockholders
and their respective successors and legal representatives. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Company and the
Selling Stockholders and the several Underwriters and for the benefit of no
other person except that (a) the representations and warranties of the Company
and the Selling Stockholders contained in this Agreement shall also be for the
benefit of any person or persons who control any Underwriter within the meaning
of Section 15 of the Securities Act, and (b) the indemnities by the
Underwriters shall also be for the benefit of the directors of the Company,
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Securities Act. No purchaser of Shares from any Underwriter will be deemed
a successor because of such purchase. The validity and interpretation of this
Agreement shall be governed by the laws of the State of Tennessee. This
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Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. The Representatives hereby represent and warrant to the Company
that the Representatives have authority to act hereunder on behalf of the
several Underwriters, and any action hereunder taken by the Representatives
will be binding upon all the Underwriters.
If the foregoing is in accordance with your understanding of our
agreement, please indicate your acceptance thereof in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
among the Company, the Selling Stockholders and each of the several
Underwriters.
Very truly yours,
CORRECTIONS CORPORATION OF AMERICA
By:
------------------------------------
Title:
---------------------------------
Confirmed and accepted as of the
date first above written.
J.C. BRADFORD & CO.
STEPHENS INC.
For themselves and as
Representatives of the Several
Underwriters
By:
----------------------------
Partner
SELLING STOCKHOLDERS
By:
------------------------------------
Attorney-in-Fact for each
of the Selling Stockholders
listed in Schedule II hereto.
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SCHEDULE I
UNDERWRITERS
Number of
Firm Shares to
Underwriter Be Purchased
- ----------- --------------
J.C. Bradford & Co. . . . . . . .
Stephens Inc. . . . . . . . . . .
--------------
TOTAL 2,500,000
==============
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SCHEDULE II
SELLING STOCKHOLDERS
Number of
Firm Shares
Name To Be Sold
- ---- -----------
Thomas W. Beasley . . . . . . . . . . . . . . . . . . . . . 223,384
Thomas Loventhal. . . . . . . . . . . . . . . . . . . . . . 75,000
American Corrections Transport, Inc.. . . . . . . . . . . . 44,430
Ted Feldman . . . . . . . . . . . . . . . . . . . . . . . . 1,000
Louis Ratchford . . . . . . . . . . . . . . . . . . . . . . 1,500
Scott L. Moskovitz . . . . . . . . . . . . . . . . . . . . 1,000
Alma Wells. . . . . . . . . . . . . . . . . . . . . . . . . 1,500
Elizabeth Smith . . . . . . . . . . . . . . . . . . . . . . 1,500
D. Paul Alagia. . . . . . . . . . . . . . . . . . . . . . . 12,200
Harold S. Nelson. . . . . . . . . . . . . . . . . . . . . . 171,562
Ben F. Morgan, Jr. . . . . . . . . . . . . . . . . . . . . 30,000
A. W. Sandbach. . . . . . . . . . . . . . . . . . . . . . . 40,000
William H. Cull . . . . . . . . . . . . . . . . . . . . . . 35,000
Thomas F. Buetow. . . . . . . . . . . . . . . . . . . . . . 74,000
Dorothy Watkins . . . . . . . . . . . . . . . . . . . . . . 2,500
David Watkins . . . . . . . . . . . . . . . . . . . . . . . 2,000
John Watkins, Jr. . . . . . . . . . . . . . . . . . . . . . 2,000
John L. Smith . . . . . . . . . . . . . . . . . . . . . . . 21,000
Patrick H. Molloy . . . . . . . . . . . . . . . . . . . . . 2,500
Charles O. Hundley. . . . . . . . . . . . . . . . . . . . . 15,974
Starletta Schirmer. . . . . . . . . . . . . . . . . . . . . 750
Michael D. Shmerling. . . . . . . . . . . . . . . . . . . . 38,400
Lisa A. Shmerling . . . . . . . . . . . . . . . . . . . . . 74,800
Alan Wernick. . . . . . . . . . . . . . . . . . . . . . . . 8,000
David Obolensky . . . . . . . . . . . . . . . . . . . . . . 10,000
Cindie Unger. . . . . . . . . . . . . . . . . . . . . . . . 110,000
---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,000,000
=========
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