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EXHIBIT 1.1
EXECUTION COPY
INTERNATIONAL SPEEDWAY CORPORATION
$150,000,000 4.20% SENIOR NOTES DUE 2009
$150,000,000 5.40% SENIOR NOTES DUE 2014
PURCHASE AGREEMENT
APRIL 19, 2004
Wachovia Capital Markets, LLC
Banc One Capital Markets, Inc.
SunTrust Capital Markets, Inc.
As Representatives of the Initial
Purchasers
c/o Wachovia Capital Markets, LLC
One Wachovia Center
Charlotte, North Carolina 28288
Ladies and Gentlemen:
International Speedway Corporation, a corporation organized under
the laws
of Florida (the "Company"), proposes to
issue and sell to the several parties
named in Schedule I hereto (the "Initial
Purchasers"), for whom Wachovia Capital
Markets, LLC, Banc One Capital Markets,
Inc. are acting as representatives (the
"Representatives"), $150,000,000 principal
amount of its 4.20% Senior Notes Due
2009 (the "Five Year Notes") and
$150,000,000 principal amount of its 5.40%
Senior Notes due 2014 (the "Ten Year Notes"
and collectively with the Five Year
Notes, the "Securities") unconditionally
guaranteed by the entities listed on
Exhibit A attached hereto (the
"Subsidiaries"). The Five Year Notes are to be
issued under the Five Year Notes Indenture
(as defined below). The Ten Year
Notes are to be issued under the Ten Year
Notes Indenture (as defined below).
The Securities have the benefit of a
Registration Rights Agreement (the
"Registration Rights Agreement"), to be
dated as of the Closing Date (as defined
below) between the Company, its
Subsidiaries and the Initial Purchasers and in
substantially the form of Exhibit D,
pursuant to which the Company and its
Subsidiaries have agreed to exchange notes
with substantially identical terms as
the Securities (except that such notes will
not contain restrictions on transfer
or provide for additional interest in the
event of certain defaults) (the
"Exchange Securities") unconditionally
guaranteed by the Subsidiaries and issued
pursuant to the Indenture, or agreed to
register the Securities under the Act
subject to the terms and conditions therein
specified. To the extent there are
no additional parties listed on Schedule I
other than you, the term
Representatives as used herein shall mean
you as the Initial Purchasers, and the
terms Representatives and Initial
Purchasers shall mean either the singular or
plural as the context requires. The use of
the neuter in this Agreement shall
include the feminine and masculine wherever
appropriate. Certain terms used
herein are defined in Section 17
hereof.
The sale
of the Securities to the Initial Purchasers will be made
without
registration of the Securities under the
Act in reliance upon exemptions from
the registration requirements of the
Act.
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In
connection with the sale of the Securities, the Company has
prepared a
preliminary offering memorandum, dated
April 19, 2004 (as amended or
supplemented at the Execution Time,
including any and all exhibits thereto and
any information incorporated by reference
therein, the "Preliminary
Memorandum"), and a final offering
memorandum, dated April 23, 2004 (as amended
or supplemented at the Execution Time,
including any and all exhibits thereto
and any information incorporated by
reference therein, the "Final Memorandum").
Each of the Preliminary Memorandum and the
Final Memorandum sets forth certain
information concerning the Company and the
Securities. The Company hereby
confirms that it has authorized the use of
the Preliminary Memorandum and the
Final Memorandum, and any amendment or
supplement thereto, in connection with
the offer and sale of the Securities by the
Initial Purchasers. Unless stated to
the contrary, any references herein to the
terms "amend", "amendment" or
"supplement" with respect to the Final
Memorandum shall be deemed to refer to
and include any information filed under the
Exchange Act subsequent to the
Execution Time which is incorporated by
reference therein.
1. Representations and
Warranties. The Company and the Subsidiaries jointly
and severally represent and warrant to each
Initial Purchaser as set forth below
in this Section 1 (it being understood that
the use of the term "Person" in this
Section 1 shall be deemed to exclude the
Initial Purchasers and their respective
Affiliates, as well as any Person acting on
their behalf at their direction).
(a)
The Preliminary
Memorandum, at the date thereof, did not contain any
untrue statement of a material fact or omit
to state any material fact necessary
to make the statements therein, in the
light of the circumstances under which
they were made, not misleading. At the
Execution Time, on the Closing Date (as
defined below) and on any settlement date,
the Final Memorandum did not, and
will not (and any amendment or supplement
thereto, at the date thereof, at the
Closing Date and on any settlement date,
will not), contain any untrue statement
of a material fact or omit to state any
material fact necessary to make the
statements therein, in the light of the
circumstances under which they were
made, not misleading; provided, however,
that the Company and its Subsidiaries
make no representation or warranty as to
the information contained in or omitted
from the Preliminary Memorandum or the
Final Memorandum, or any amendment or
supplement thereto, in reliance upon and in
conformity with information
furnished in writing to the Company by or
on behalf of the Initial Purchasers
through the Representatives specifically
for inclusion therein.
(b)
Neither the
Company, nor any of its Affiliates, nor any Person
acting on its or their behalf has, directly
or indirectly, made offers or sales
of any security, or solicited offers to buy
any security, under circumstances
that would require the registration of the
Securities under the Act.
(c)
Neither the
Company, nor any of its Affiliates, nor any Person
acting on its or their behalf has engaged
in any form of general solicitation or
general advertising (within the meaning of
Regulation D) in connection with any
offer or sale of the Securities in the
United States.
(d)
The Securities
satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
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(e)
Neither the
Company, nor any of its Affiliates, nor any Person
acting on its or their behalf has engaged
in any directed selling efforts
(within the meaning of Regulation S) with
respect to the Securities, and each of
them has complied with the offering
restrictions requirement of Regulation S.
(f)
The Company is
not, and after giving effect to the offering and sale
of the Securities and the application of
the proceeds thereof as described in
the Final Memorandum will not be, an
"investment company" within the meaning of
the Investment Company Act, without taking
account of any exemption arising out
of the number of holders of the Company's
securities.
(g)
The Company is
subject to and in full compliance with the reporting
requirements of Section 13 or Section 15(d)
of the Exchange Act and to the
Company's knowledge, the Company is in full
compliance with all applicable
provisions the Sarbanes-Oxley Act of 2002
and the Company has not received any
information to the contrary.
(h)
Neither the
Company nor any Subsidiaries has paid or agreed to pay
to any Person any compensation for
soliciting another to purchase any of the
Securities (except as contemplated by this
Agreement).
(i)
The Company has
not taken, directly or indirectly, any action
designed to cause or which has constituted
or which might reasonably be expected
to cause or result, under the Exchange Act
or otherwise, in the stabilization or
manipulation of the price of any security
of the Company to facilitate the sale
or resale of the Securities.
(j)
The information,
if any, provided by the Company pursuant to Section
5(h) hereof will not, at the date thereof,
contain any untrue statement of a
material fact or omit to state any material
fact necessary to make the
statements therein, in the light of the
circumstances under which they were
made, not misleading.
(k)
Each of the
Company and its Subsidiaries has been duly incorporated
and is validly existing as a corporation in
good standing under the laws of the
jurisdiction in which it is chartered or
organized with full corporate power and
authority to own or lease, as the case may
be, and to operate its properties and
conduct its business as described in the
Final Memorandum, and is duly qualified
to do business as a foreign corporation and
is in good standing under the laws
of each jurisdiction which requires such
qualification, except where the failure
to so exist or qualify would not have a
material adverse effect on the condition
(financial or otherwise), prospects,
earnings, business or properties of the
Company and its Subsidiaries, taken as a
whole (a "Material Adverse Effect").
(l)
All the
outstanding shares of capital stock of each Subsidiary have
been duly and validly authorized and issued
and are fully paid and
nonassessable, and, except as otherwise set
forth in the Final Memorandum, all
outstanding shares of capital stock of the
Subsidiaries are owned by the Company
either directly or through wholly owned
Subsidiaries free and clear of any
perfected security interest or any other
security interests, claims, liens or
encumbrances.
(m)
the Company's
authorized equity capitalization is as set forth in
the Final Memorandum.
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(n)
The statements
in the Final Memorandum under the headings
"Description of the Notes", "Exchange
Offer; Registration Rights," "Material
United States Federal Income Tax
Consequences" and under the headings "Risk
Factors" and "Business -- Legal
Proceedings" describing certain legal
proceedings affecting the Company and its
Subsidiaries, fairly summarize the
matters therein described.
(o)
This Agreement
has been duly authorized, executed and delivered by
the Company and its Subsidiaries; the
Indentures have been duly authorized, and
assuming the due authorization, execution,
delivery thereof by the Trustee, when
executed and delivered by the Company and
its Subsidiaries, will constitute
legal, valid, binding instruments
enforceable against the Company and its
Subsidiaries in accordance with their
respective terms (subject, as to the
enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency,
moratorium or other laws affecting
creditors' rights generally from time to time
in effect and to general principles of
equity, and subject, as to the
enforcement of rights of indemnity and
contribution, to applicable federal and
state securities laws and principles of
public policy); the Securities have been
duly authorized, and, when executed and
authenticated in accordance with the
provisions of the applicable Indenture and
delivered to and paid for by the
Initial Purchasers, will have been duly
executed and delivered by the Company
and will constitute the legal, valid and
binding obligations of the Company
entitled to the benefits of the applicable
Indenture (subject, as to the
enforcement of remedies, to applicable
bankruptcy, insolvency, moratorium or
other laws affecting creditors' rights
generally from time to time in effect and
to general principles of equity, and
subject, as to the enforcement of rights of
indemnity and contribution, to applicable
federal and state securities laws and
principles of public policy); the Exchange
Securities have been duly authorized,
and when executed, delivered and
authenticated in accordance with the provisions
of the applicable Indenture, will have been
duly executed and delivered by the
Company and will constitute the legal,
valid and binding obligations of the
Company entitled to the benefits of the
applicable Indenture (subject, as to the
enforcement of remedies, to applicable
bankruptcy, insolvency, moratorium or
other laws affecting creditors' rights
generally from time to time in effect and
to general principles of equity, and
subject, as to enforcement of rights of
indemnity and contribution, to applicable
federal and state securities laws and
principles of public policy); the
Registration Rights Agreement has been duly
authorized and, when executed and delivered
by the Company and its Subsidiaries,
will constitute the legal, valid, binding
and enforceable instrument of the
Company and its Subsidiaries (subject, as
to the enforcement of remedies, to
applicable bankruptcy, reorganization,
insolvency, moratorium or other laws
affecting creditors' rights generally from
time to time in effect and to general
principles of equity, and subject, as to
the enforcement of rights of indemnity
and contribution, to applicable federal and
state securities laws and principles
of public policy); and the Credit Agreement
Amendment and Waiver has been duly
authorized by the Company and its
Subsidiaries.
(p)
No consent,
approval, authorization, filing with or order of any
court or governmental agency or body is
required to be obtained or filed, as
applicable, by the Company or any
Subsidiary in connection with the transactions
contemplated herein or in the Indentures,
the Registration Rights Agreement, or
the Credit Agreement Amendment and Waiver
except such as will be obtained under
the Act in connection with the Registration
Rights Agreement and the
qualification of the Indenture under the
Trust Indenture Act and such as may be
required under the blue sky laws of any
jurisdiction in connection with the
purchase and distribution of
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the Securities by the Initial Purchasers in
the manner contemplated herein and
in the Final Memorandum and the
Registration Rights Agreement.
(q)
Neither the
execution and delivery of the Indentures, this
Agreement, the Registration Rights
Agreement or the Credit Agreement Amendment
and Waiver, the issue and sale of the
Securities or the Exchange Securities, nor
the consummation of any other of the
transactions herein or therein
contemplated, nor the fulfillment of the
terms hereof or thereof will conflict
with, result in a breach or violation or
imposition of any lien, charge or
encumbrance upon any property or assets of
the Company or any of its
Subsidiaries pursuant to (i) the charter or
by-laws of the Company or any of its
Subsidiaries; (ii) assuming the due
execution and delivery of the Credit
Agreement Amendment and Waiver, the terms
of any indenture, contract, lease,
mortgage, deed of trust, note agreement,
loan agreement or other agreement,
obligation, condition, covenant or
instrument to which the Company or any of its
Subsidiaries is a party or bound or to
which its or their property is subject,
other than conflicts, breaches, violations
or liens that, individually or in the
aggregate, would not have a Material
Adverse Effect; or (iii) any statute, law,
rule, regulation, judgment, order or decree
applicable to the Company or any of
its Subsidiaries of any court, regulatory
body, administrative agency,
governmental body, arbitrator or other
authority having jurisdiction over the
Company or any of its Subsidiaries or any
of its or their properties, other than
violations that, individually or in the
aggregate, would not have a Material
Adverse Effect.
(r)
The financial
statements of the Company and its consolidated
subsidiaries and the related notes thereto
incorporated by reference in the
Preliminary Memorandum and the Final
Memorandum present fairly the financial
position of the Company and its
consolidated subsidiaries as of the dates
indicated and the results of their
operations and the changes in their cash
flows for the periods specified; except as
specifically set forth in the Final
Memorandum, such financial statements have
been prepared in conformity with
generally accepted accounting principles
applied on a consistent basis
throughout the periods covered thereby.
The
financial data set forth under the captions "Summary--Summary
Financial Information," "Capitalization"
and "Selected Financial Data" in the
Final Memorandum fairly present, on the
basis stated in the Final Memorandum,
the information included therein.
(s)
Except as set
forth in or contemplated in the Final Memorandum, no
action, suit or proceeding by or before any
court or governmental agency,
authority or body or any arbitrator
involving the Company or any of its
Subsidiaries or its or their property is
pending or, to the best knowledge of
the Company, threatened that (i) could
reasonably be expected to have a material
adverse effect on the ability of the
Company and its Subsidiaries to perform
this Agreement, the Indenture or the
Registration Rights Agreement, or
consummate any of the transactions
contemplated hereby or thereby; or (ii) could
reasonably be expected to have a Material
Adverse Effect, whether or not arising
from transactions in the ordinary course of
business.
(t)
Each of the
Company and each of its Subsidiaries owns or leases all
such properties as are necessary to the
conduct of its operations as presently
conducted.
(u)
Neither the
Company nor any Subsidiary is in violation or default of
(i) any provision of its charter or bylaws;
(ii) assuming the due execution and
delivery of the Credit
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Agreement Amendment and Waiver, the terms
of any indenture, contract, lease,
mortgage, deed of trust, note agreement,
loan agreement or other agreement,
obligation, condition, covenant or
instrument to which it is a party or bound or
to which its property is subject, other
than violations or defaults that,
individually or in the aggregate, would not
have a Material Adverse Effect; or
(iii) any statute, law, rule, regulation,
judgment, order or decree applicable
to the Company or any of its Subsidiaries
of any court, regulatory body,
administrative agency, governmental body,
arbitrator or other authority having
jurisdiction over the Company or any such
Subsidiary or any of its properties,
as applicable, other than violations or
defaults that, individually or in the
aggregate, would not have a Material
Adverse Effect.
(v)
Ernst &
Young LLP, who has certified the financial statements of the
Company and its consolidated subsidiaries
incorporated by reference in the
Preliminary Memorandum and Final
Memorandum, is an independent public accountant
with respect to the Company within the
meaning of the Act and the applicable
published rules and regulations
thereunder.
(w)
There are no
stamp or other issuance or transfer taxes or duties or
other similar fees or charges required to
be paid in connection with the
execution and delivery of this Agreement or
the issuance or sale by the Company
of the Securities or the Exchange
Securities.
(x)
The Company and
its Subsidiaries have filed all foreign, federal,
state and local tax returns that are
required to be filed or has requested
extensions thereof (except in any case in
which the failure to so file would not
have a Material Adverse Effect), whether or
not arising from transactions in the
ordinary course of business, except as set
forth in or contemplated in the Final
Memorandum (exclusive of any amendment or
supplement thereto), and has paid all
taxes required to be paid by it and any
other assessment, fine or penalty levied
against it, to the extent that any of the
foregoing is due and payable, except
for any such assessment, fine or penalty
that is currently being contested in
good faith or as would not have a Material
Adverse Effect, whether or not
arising from transactions in the ordinary
course of business, except as set
forth in or contemplated in the Final
Memorandum.
(y)
No labor problem
or dispute with the employees of the Company or any
of its Subsidiaries exists or, to the best
knowledge of the Company, is
threatened or imminent, and the Company is
not aware of any existing or imminent
labor disturbance by the employees of any
of its or its Subsidiaries' principal
suppliers, contractors or customers, that
could have a Material Adverse Effect,
whether or not arising from transactions in
the ordinary course of business,
except as set forth in or contemplated in
the Final Memorandum.
(z)
The Company and
each of its Subsidiaries are 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 they are
engaged; all policies of insurance and
fidelity or surety bonds insuring the
Company or any of its Subsidiaries or their
respective businesses, assets,
employees, officers and directors are in
full force and effect; the Company and
its Subsidiaries are in compliance with the
terms of such policies and
instruments in all material respects; and
there are no claims by the Company or
any of its Subsidiaries under any such
policy or instrument as to which any
insurance company is denying liability or
defending under a reservation of
rights clause, other than claims that,
individually or in the aggregate, if so
denied, would not have a Material Adverse
Effect; neither the Company nor any
such Subsidiary has
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been refused any insurance coverage sought
or applied for; and neither the
Company nor any such Subsidiary has any
reason to believe that it will not be
able to renew its existing insurance
coverage as and when such coverage expires
or to obtain similar coverage from similar
insurers as may be necessary to
continue its business at a cost that would
not have a Material Adverse Effect,
except as set forth in or contemplated in
the Final Memorandum.
(aa)
No Subsidiary of the
Company is currently prohibited, directly or
indirectly, from paying any dividends to
the Company, from making any other
distribution on such Subsidiary's capital
stock, from repaying to the Company
any loans or advances to such Subsidiary
from the Company or from transferring
any of such Subsidiary's property or assets
to the Company or any other
subsidiary of the Company, except as
described in or contemplated by the Final
Memorandum.
(bb)
The Company and its
Subsidiaries possess all licenses, certificates,
permits and other authorizations issued by
the appropriate federal, state or
foreign regulatory authorities necessary to
conduct their respective businesses,
except where the failure to possess any of
the foregoing would not have a
Material Adverse Effect, and neither the
Company nor any such Subsidiary has
received any notice of proceedings relating
to the revocation or modification of
any such certificate, authorization or
permit which, singly or in the aggregate,
if the subject of an unfavorable decision,
ruling or finding, would have a
Material Adverse Effect, except as set
forth in or contemplated in the Final
Memorandum.
(cc)
The Company and each
of its Subsidiaries maintain a system of
internal accounting controls sufficient to
provide reasonable assurance that (i)
transactions are executed in accordance
with management's general or specific
authorizations; (ii) transactions are
recorded as necessary to permit
preparation of financial statements in
conformity with generally accepted
accounting principles and to maintain asset
accountability; (iii) access to
assets is permitted only in accordance with
management's general or specific
authorization; and (iv) the recorded
accountability for assets is compared with
the existing assets at reasonable intervals
and appropriate action is taken with
respect to any differences.
(dd)
The Company and its
Subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and
local laws and regulations relating
to the protection of human health and
safety, the environment or hazardous or
toxic substances or wastes, pollutants or
contaminants ("Environmental Laws");
(ii) have received and are in compliance
with all permits, licenses or other
approvals required of them under applicable
Environmental Laws to conduct their
respective businesses; and (iii) have not
received notice of any actual or
potential liability for the investigation
or remediation of any disposal or
release of hazardous or toxic substances or
wastes, pollutants or contaminants,
except where such non-compliance with
Environmental Laws, failure to receive
required permits, licenses or other
approvals, or liability would not,
individually or in the aggregate, have a
Material Adverse Effect, except as set
forth in or contemplated in the Final
Memorandum; and, except as set forth in
the Final Memorandum, neither the Company
nor any of the Subsidiaries has been
named as a "potentially responsible party"
under the Comprehensive Environmental
Response, Compensation, and Liability Act
of 1980, as amended.
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(ee)
In the ordinary course
of its business, the Company periodically
reviews the effect of Environmental Laws on
the business, operations and
properties of the Company and its
Subsidiaries, in the course of which it
identifies and evaluates associated costs
and liabilities (including, without
limitation, any capital or operating
expenditures required for clean-up, closure
of properties or compliance with
Environmental Laws, or any permit, license or
approval, any related constraints on
operating activities and any potential
liabilities to third parties); on the basis
of such review, the Company has
reasonably concluded that such associated
costs and liabilities would not,
singly or in the aggregate, have a Material
Adverse Effect, except as set forth
in or contemplated in the Final
Memorandum.
(ff)
Each of the Company
and its Subsidiaries has fulfilled its
obligations, if any, under the minimum
funding standards of Section 302 of the
United States Employee Retirement Income
Security Act of 1974, as amended
("ERISA"), and the regulations and
published interpretations thereunder with
respect to each "plan" (as defined in
Section 3(3) of ERISA and such regulations
and published interpretations) in which
employees of the Company and its
Subsidiaries are eligible to participate
and each such plan is in compliance in
all material respects with the presently
applicable provisions of ERISA and such
regulations and published interpretations;
the Company and its Subsidiaries have
not incurred any unpaid liability to the
Pension Benefit Guaranty Corporation
(other than for the payment of premiums in
the ordinary course) or to any such
plan under Title IV of ERISA.
(gg)
The Company and its
Subsidiaries own or possess all patent,
trademarks, trademark registration, service
marks, service mark registrations,
trade names, copyrights, licenses,
inventions, trade secrets and rights
described in the Final Memorandum as being
owned by them, or any of them, or
necessary for the conduct of their
respective businesses, and the Company is not
aware of any claim to the contrary or any
challenge by any other Person to the
rights of the Company or any of its
Subsidiaries with respect to the foregoing.
(hh)
The Company and its
Subsidiaries have complied with all provisions
of Florida Statutes 517.075, relating to
issuers doing business with Cuba.
Any
certificate signed by any officer of the Company and delivered to
the
Representatives or counsel for the
Underwriters in connection with the offering
of the Securities shall be deemed a
representation and warranty by the Company
and its Subsidiaries, as to matters covered
thereby, to each Initial Purchaser.
2. Purchase and Sale.
Subject to the terms and conditions and in reliance
upon the representations and warranties
herein set forth, the Company agrees to
sell to each Initial Purchaser, and each
Initial Purchaser agrees, severally and
not jointly, to purchase from the Company,
(i) at a purchase price of 99.188% of
the principal amount thereof, the principal
amount of Five Year Notes set forth
opposite such Initial Purchaser's name in
Schedule I hereto and (ii) at a
purchase price of 99.275% of the principal
amount thereof, the principal amount
of Ten Year Notes set forth opposite such
Initial Purchaser's name in Schedule I
hereto.
3. Delivery and Payment.
Delivery of and payment for the Securities shall be
made at 10:00 A.M., New York City time, on
April 23, 2004, or at such time on
such later date as the Representatives
shall designate, which date and time may
be postponed by agreement between
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the Representatives and the Company or as
provided in Section 9 hereof (such
date and time of delivery and payment for
the Securities being herein called the
"Closing Date"). Delivery of the Securities
shall be made to the Representatives
for the respective accounts of the several
Initial Purchasers against payment by
the several Initial Purchasers through the
Representatives of the purchase price
thereof to or upon the order of the Company
by wire transfer payable in same-day
funds to the account specified by the
Company. Delivery of the Securities shall
be made through the facilities of The
Depository Trust Company unless the
Representatives shall otherwise
instruct.
4. Offering by Initial
Purchasers. Each Initial Purchaser, severally and not
jointly, represents and warrants to and
agrees with the Company that:
(a)
It has not
offered or sold, and will not offer or sell, any
Securities except (i) to those it
reasonably believes to be qualified
institutional buyers (as defined in Rule
144A under the Act) and that, in
connection with each such sale, it has
taken or will take reasonable steps to
ensure that the purchaser of such
Securities is aware that such sale is being
made in reliance on Rule 144A; or (ii) in
accordance with the restrictions set
forth in Exhibit B hereto.
(b)
Neither it nor
any Person acting on its behalf has made or will make
offers or sales of the Securities in the
United States by means of any form of
general solicitation or general advertising
(within the meaning of Regulation D)
in the United States or under circumstances
that would require registration of
the Securities under the Act.
5. Agreements. The
Company and its Subsidiaries agree with each Initial
Purchaser that:
(a)
The Company will
furnish to each Initial Purchaser and to counsel
for the Initial Purchasers, without charge,
during the period referred to in
paragraph (c) below, as many copies of the
Final Memorandum and any amendments
and supplements thereto as it may
reasonably request.
(b)
The Company will
not amend or supplement the Final Memorandum, other
than by filing documents under the Exchange
Act that are incorporated by
reference therein, without the prior
written consent of the Representatives;
provided, however, that, prior to the
completion of the distribution of the
Securities by the Initial Purchasers (as
determined by the Representatives), the
Company will not file any document under
the Exchange Act that is incorporated
by reference in the Final Memorandum
unless, prior to such proposed filing, the
Company has furnished the Representatives
with a copy of such document for their
review and the Representatives have not
reasonably objected to the filing of
such document. The Company will promptly
advise the Representatives when any
document filed under the Exchange Act that
is incorporated by reference in the
Final Memorandum shall have been filed with
the Commission.
(c)
If at any time
prior to the completion of the sale of the Securities
by the Initial Purchasers (as determined by
the Representatives), any event
occurs as a result of which the Final
Memorandum, as then amended or
supplemented, would include any untrue
statement of a material fact or omit to
state any material fact necessary to make
the statements therein, in the light
of the circumstances under which they were
made, not misleading, or if it should
be
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necessary to amend or supplement the Final
Memorandum to comply with applicable
law, the Company promptly (i) will notify
the Representatives of any such event;
(ii) subject to the requirements of
paragraph (b) of this Section 5, will
prepare an amendment or supplement that
will correct such statement or omission
or effect such compliance; and (iii) will
supply any supplemented or amended
Final Memorandum to the several Initial
Purchasers and counsel for the Initial
Purchasers without charge in such
quantities as the Representatives may
reasonably request.
(d)
The Company will
arrange, if necessary, for the qualification of the
Securities for sale by the Initial
Purchasers under the laws of such
jurisdictions as the Representatives may
designate and will maintain such
qualifications in effect so long as
required for the sale of the Securities;
provided that in no event shall the Company
nor shall any Subsidiary be
obligated to qualify to do business in any
jurisdiction where it is not now so
qualified or to take any action that would
subject it to service of process in
suits, other than those arising out of the
offering or sale of the Securities,
in any jurisdiction where it is not now so
subject. The Company will promptly
advise the Representatives of the receipt
by the Company or any Subsidiary of
any notification with respect to the
suspension of the qualification of the
Securities for sale in any jurisdiction or
the initiation or threatening of any
proceeding for such purpose.
(e)
The Company will
not, and will not permit any of its Affiliates to,
resell any Securities that have been
acquired by any of them.
(f)
Neither the
Company, nor any of its Affiliates, nor any Person
acting on its or their behalf at its or
their direction will, directly or
indirectly, make offers or sales of any
security, or solicit offers to buy any
security, under circumstances that would
require the registration of the
Securities under the Act.
(g)
Neither the
Company, nor any of its Affiliates, nor any Person
acting on its or their behalf at its or
their direction will engage in any form
of general solicitation or general
advertising (within the meaning of Regulation
D) in connection with any offer or sale of
the Securities in the United States.
(h)
So long as any
of the Securities are "restricted securities" within
the meaning of Rule 144(a)(3) under the
Act, the Company will, during any period
in which it is not subject to and in
compliance with Section 13 or 15(d) of the
Exchange Act or it is not exempt from such
reporting requirements pursuant to
and in compliance with Rule 12g3-2(b) under
the Exchange Act, provide to each
holder of such restricted securities and to
each prospective purchaser (as
designated by such holder) of such
restricted securities, upon the request of
such holder or prospective purchaser, any
information required to be provided by
Rule 144A(d)(4) under the Act. This
covenant is intended to be for the benefit
of the holders, and the prospective
purchasers designated by such holders, from
time to time of such restricted
securities.
(i)
Neither the
Company, nor any of its Affiliates, nor any Person
acting on its or their behalf at its or
their discretion will engage in any
directed selling efforts (within the
meaning of Regulation S) with respect to
the Securities, and each of them will
comply with the offering restrictions
requirement of Regulation S.
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(j)
The Company will
cooperate with the Representatives and use its
reasonable best efforts to permit the
Securities to be eligible for clearance
and settlement through The Depository Trust
Company.
(k)
The Company will
not for a period of 7 da
