Unassociated Document
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THE PANTRY, INC.
(a
Delaware corporation)
2,150,000
Shares of Common Stock
PURCHASE
AGREEMENT |
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| Dated:
March 8, 2005 |
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Table
of Contents |
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Page |
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PURCHASE
AGREEMENT |
1 |
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SECTION
1. Representations
and Warranties. |
2 |
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(a)
Representations
and Warranties by the Company |
2 |
|
(i)
Compliance
with Registration Requirements |
2 |
|
(ii)
Incorporated
Documents |
3 |
|
(iii)
Independent
Accountants |
3 |
|
(iv)
Financial
Statements |
4 |
|
(v)
No
Material Adverse Change in Business |
4 |
|
(vi)
Good
Standing of the Company |
4 |
|
(vii)
Good
Standing of Subsidiaries |
4 |
|
(viii)
Capitalization |
5 |
|
(ix)
Authorization
of Agreement |
5 |
|
(x)
Description
of Securities |
5 |
|
(xi)
Absence
of Defaults and Conflicts |
5 |
|
(xii)
Absence
of Labor Disputes |
6 |
|
(xiii)
Absence
of Proceedings |
6 |
|
(xiv)
Accuracy
of Exhibits |
6 |
|
(xv)
Possession
of Intellectual Property |
7 |
|
(xvi)
Absence
of Further Requirements |
7 |
|
(xvii)
Possession
of Licenses and Permits |
7 |
|
(xviii)
Title
to Property |
8 |
|
(xix)
Investment
Company Act |
8 |
|
(xx)
Environmental
Laws |
8 |
|
(xxi)
Registration
Rights |
9 |
|
(xxii)
Stabilization
or Manipulation |
9 |
|
(xxiii)
Accounting
Controls and Disclosure Controls |
9 |
|
(xxiv)
Tax
Returns |
9 |
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(xxv)
Suppliers |
10 |
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(b)
Representations
and Warranties by the Selling Shareholders |
10 |
|
(i)
Accurate
Disclosure |
10 |
|
(ii)
Authorization
of this Agreement |
10 |
|
(iii)
Noncontravention |
10 |
|
(iv)
Certificates
Suitable for Transfer |
11 |
|
(v)
Valid
Title |
11 |
|
(vi)
Delivery
of Securities |
11 |
|
(vii)
Absence
of Manipulation |
11 |
|
(viii)
Absence
of Further Requirements |
12 |
|
(ix)
No
Association with NASD |
12 |
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(x)
Due
Organization |
12 |
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(c)
Officer's
Certificates |
12 |
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SECTION
2. Sale
and Delivery to Underwriter; Closing. |
12 |
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(a)
Securities |
12 |
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(b)
Payment |
12 |
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(c)
Denominations;
Registration |
13 |
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SECTION
3. Covenants of the Company |
13 |
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(a)
Compliance
with Securities Regulations and Commission Requests |
13 |
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(b)
Filing
of Amendments |
13 |
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(c)
Delivery
of Registration Statements |
13 |
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(d)
Delivery
of Prospectuses |
14 |
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(e)
Continued
Compliance with Securities Laws |
14 |
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(f)
Blue
Sky Qualifications |
14 |
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(g)
Rule
158 |
15 |
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(h)
Listing |
15 |
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(i)
Reporting
Requirements |
15 |
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SECTION
4. Payment of Expenses. |
15 |
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(a)
Expenses |
15 |
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(b)
Expenses
of the Selling Shareholders |
15 |
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(c)
Termination
of Agreement |
16 |
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(d)
Allocation
of Expenses |
16 |
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SECTION
5. Conditions of the Underwriter's Obligations |
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(a)
Effectiveness
of Registration Statement |
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(b)
Opinion
of Counsel for Company |
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(c)
Opinion
of Counsel for the Selling Shareholders |
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(d)
Opinion
of Counsel for Underwriter |
17 |
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(e)
Officers'
Certificates |
17 |
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(f)
Certificate
of Selling Shareholders |
17 |
|
(g)
Accountant's
Comfort Letter |
17 |
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(h)
Listing |
18 |
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(i)
No
Objection |
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(j)
Lock-up
Agreements |
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(k)
Maintenance
of Rating |
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(l)
Additional
Documents |
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(m)
Termination
of Agreement |
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SECTION
6. Indemnification. |
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(a)
Indemnification
of Underwriter |
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(b)
Indemnification
of Company, Directors and Officers and Selling
Shareholders |
20 |
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(c)
Actions
against Parties; Notification |
20 |
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(d)
Settlement
without Consent if Failure to Reimburse |
21 |
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(e)
Other
Agreements with Respect to Indemnification |
21 |
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SECTION
7. Contribution |
21 |
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SECTION
8. Representations, Warranties and Agreements to Survive
Delivery |
22 |
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SECTION
9. Termination of Agreement. |
23 |
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(a)
Termination;
General |
23 |
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(b)
Liabilities |
23 |
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SECTION
10. Default by one or more of the Selling Shareholders |
23 |
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SECTION
11. Tax Disclosure |
24 |
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SECTION
12. Notices |
24 |
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SECTION
13. Parties |
24 |
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SECTION
14. GOVERNING LAW AND TIME |
24 |
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SECTION
15. Counterparts |
24 |
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SECTION
16.
Effect of Headings |
24 |
THE
PANTRY, INC.
(a
Delaware corporation)
2,150,000
Shares of Common Stock
(Par
Value $.01 Per Share)
PURCHASE
AGREEMENT
March 8,
2005
Merrill
Lynch & Co.
Merrill
Lynch, Pierce, Fenner & Smith
Incorporated
World
Financial Center
North
Tower
New York,
New York 10080
Ladies
and Gentlemen:
The
Pantry, Inc., a Delaware corporation (the "Company"), and the persons listed in
Schedule A hereto (the “Selling Shareholders”), confirm their respective
agreements with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated (“Merrill Lynch” or the “Underwriter”), with respect to the
sale by the Selling Shareholders, acting severally and not jointly, and the
purchase by the Underwriter, of 2,150,000 shares of Common Stock, par value
$0.01 per share, of the Company (the “Common Stock”). The aforesaid 2,150,000
shares of Common Stock to be purchased by the Underwriter are hereinafter called
the “Securities.”
The
Company and the Selling Shareholders understand that the Underwriter proposes to
make a public offering of the Securities as soon as the Underwriter deems
advisable after this Agreement has been executed and delivered.
The
Company has filed with the Securities and Exchange Commission (the "Commission")
a registration statement on Form S-3 (No. 333-116972) covering the
registration of the Securities and other securities of the Company under the
Securities Act of 1933, as amended (the "1933 Act"), including a related
prospectus, which has become effective. Such registration statement as amended
at the time it became effective, or, if a post-effective amendment has been
filed with respect thereto, as amended by such post-effective amendment at the
time of its effectiveness is hereinafter referred to as the “Registration
Statement.” Any registration statement filed pursuant to Rule 462(b) of the
rules and regulations of the Commission under the 1933 Act (the “1933 Act
Regulations) is herein referred to as the "Rule 462(b) Registration Statement,"
and after such filing the term "Registration Statement" shall include
the Rule 462(b) Registration Statement. The prospectus included in the
Registration Statement at the time it became effective, as supplemented by the
final prospectus supplement, in the form first furnished to the Underwriter for
use in connection with the offering of the Securities is herein called the
“Prospectus.” Any reference in this Agreement to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, as of the effective date of the Registration Statement or
the date of such preliminary prospectus or the Prospectus, as the case may be
(it being understood that the several specific references in this Agreement to
documents incorporated by reference in the Registration Statement or the
Prospectus are for clarifying purposes only and are not meant to limit the
inclusiveness of any other definition herein). For purposes of this Agreement,
all references to the Registration Statement, any preliminary prospectus or the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” in the Registration
Statement, any preliminary prospectus or the Prospectus (or other references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by reference in the
Registration Statement, any preliminary prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934 (the “1934 Act”) which is incorporated by
reference in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be.
SECTION
1. Representations
and Warranties.
(a) Representations
and Warranties by the Company. The
Company represents and warrants to the Underwriter as of the date hereof (with
such representations and warranties being made as of the date hereof) and as of
the Closing Time referred to in Section 2(b) hereof (with such representations
and warranties being made as of the Closing Time), and agrees with the
Underwriter, as follows:
(i) Compliance
with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement, any Rule
462(b) Registration Statement or any post-effective amendment thereto has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated
by the Commission, and any request on the part of the Commission for additional
information has been complied with. At the respective times the Registration
Statement, any Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective, on the date hereof and at the Closing Time,
the Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations and
did not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither the Prospectus nor any amendments or
supplements thereto (including any prospectus wrapper), at the time the
Prospectus or any such amendment or supplement was issued and at the Closing
Time, included or will include an untrue statement of a material fact or omitted
or will 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. The representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information furnished to
the Company in writing (1) by Merrill Lynch expressly for use in the
Registration Statement or Prospectus or (2) by any Selling Shareholder expressly
for use in response to Item 7 of Form S-3 in the Registration Statement or
Prospectus.
Each
preliminary prospectus and the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriter for use in connection with this offering
was identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(ii) Incorporated
Documents. The
documents incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus, when they became effective or at the
time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the “1934 Act Regulations”)
and, when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time the Prospectus was
issued and at the Closing Time, did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(iii) Independent
Accountants. The
accountants who certified the financial statements and supporting schedules
included in the Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations. Deloitte & Touche LLP
has not provided to the Company or its subsidiaries any non-audit services, the
provision of which is prohibited by applicable law or accounting
standards.
(iv) Financial
Statements. The
historical financial statements of the Company included and incorporated by
reference in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and the
statements of operations, shareholders' equity and cash flows of the Company and
its consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with United States generally
accepted accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved. The
selected historical financial data incorporated by reference in the Registration
Statement and the Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements incorporated by reference in the Registration Statement and the
Prospectus. All financial statements and pro forma financial statements required
to be included in the Registration Statement and the Prospectus pursuant to the
1933 Act, the 1933 Act Regulations and Regulation S-X have been included or
incorporated by reference in the Registration Statement and the
Prospectus.
(v) No
Material Adverse Change in Business. Since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A) there
has been no material adverse change in the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with respect
to the Company and its subsidiaries considered as one enterprise, and (C) there
has been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) Good
Standing of the Company. The
Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse
Effect.
(vii) Good
Standing of Subsidiaries. Each
subsidiary of the Company (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect; except as otherwise disclosed in the Registration Statement, all
of the issued and outstanding capital stock of each such Subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity (except
for restrictions on transfer imposed by federal or state securities laws); none
of the outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive rights of any securityholder of such Subsidiary. The
only subsidiaries of the Company are Kangaroo, Inc., a Georgia corporation, and
R. & H. Maxxon, Inc., a South Carolina corporation.
(viii) Capitalization. The
shares of issued and outstanding capital stock of the Company, including the
Securities to be purchased by the Underwriter from the Selling Shareholders,
have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the Company,
including the Securities to be purchased by the Underwriter from the Selling
Shareholders, was issued in violation of the preemptive or other similar rights
of any securityholder of the Company; to the Company’s knowledge, the sale of
shares of Common Stock by the Selling Shareholders to the Underwriter will not
trigger any co-sale or tag-along rights or other similar rights of any other
securityholder of the Company.
(ix) Authorization
of Agreement. This
Agreement has been duly authorized, executed and delivered by the
Company.
(x) Description
of Securities. The
Common Stock conforms to all statements relating thereto contained in the
Prospectus and such description conforms to the rights set forth in the
instruments defining the same; no holder of the Securities will be subject to
personal liability solely by reason of being such a holder.
(xi) Absence
of Defaults and Conflicts. Neither
the Company nor any of its subsidiaries is in violation of their respective
charter or by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject (collectively,
“Agreements and Instruments”) except for such violations or defaults that would
not result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement (including the sale of the
Securities by the Selling Shareholders) and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance ("Lien") upon any property or
assets of the Company or any subsidiary pursuant to, or require any consent
under or permit any third party to terminate, any of the Agreements and
Instruments, except for such breaches, defaults, Repayment Events, Liens,
consents or terminations that would not result in a Material Adverse Effect, nor
will such action result in any violation of the provisions of the charter or
by-laws of the Company or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their assets, properties or operations. As
used herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or any
subsidiary.
(xii) Absence
of Labor Disputes. Other
than as set forth in the Registration Statement or the documents incorporated by
reference therein, no labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers or vendors,
which, in either case, may reasonably be expected to result in a Material
Adverse Effect.
(xiii) Absence
of Proceedings. Other
than as set forth in the Registration Statement or the documents incorporated by
reference therein, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any subsidiary, which is
required to be disclosed in the Registration Statement (other than as disclosed
therein), or which would result in a Material Adverse Effect, or which would
materially and adversely affect the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its
obligations hereunder; the aggregate of all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or of which any of
their respective property or assets is the subject which are not described in
the Registration Statement or the documents incorporated by reference therein,
including ordinary routine litigation incidental to the business, would not
result in a Material Adverse Effect.
(xiv) Accuracy
of Exhibits. There
are no contracts or documents which are required under the 1933 Act or the 1934
Act or the rules and regulations thereunder to be described in the Registration
Statement or the Prospectus or the documents incorporated by reference therein
or to be filed as exhibits thereto which have not been so described and filed as
required.
(xv) Possession
of Intellectual Property. The
Company and its subsidiaries own or possess, have the right to use or can
acquire adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks,
service marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now operated by
them, except where the failure to own, possess, have the right to use or have
the ability to acquire any such Intellectual Property would not have a Material
Adverse Effect; and neither the Company nor any of its subsidiaries has received
any notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or of any
facts or circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its subsidiaries
therein, and which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xvi) Absence
of Further Requirements. No
filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency is
necessary or required for the performance by the Company of its obligations
hereunder, in connection with the offering or sale of the Securities hereunder
or the consummation of the transactions contemplated by this Agreement, except
such as have been already obtained under the 1933 Act or the 1933 Act
Regulations or as may be required by state securities laws.
(xvii) Possession
of Licenses and Permits. The
Company and its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except where the failure
to possess such Governmental Licenses would not have a Material Adverse Effect;
the Company and its subsidiaries are in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material Adverse
Effect; and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xviii) Title
to Property. The
Company and its subsidiaries have good and marketable title to all real property
owned by the Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind except such
as (a) are described in, or incorporated by reference into, the Prospectus or
(b) do not, singly or in the aggregate, affect the value of such property, do
not interfere with the use made and proposed to be made of such property by the
Company or any of its subsidiaries and would not reasonably be expected to,
individually or in the aggregate, result in a Material Adverse Effect; and all
of the leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or any
of its subsidiaries holds properties described in, or incorporated by reference
into, the Prospectus, are in full force and effect, and neither the Company nor
any subsidiary has any notice of any claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any subsidiary under any of the
leases or subleases mentioned above, or affecting or questioning the rights of
the Company or such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease, except for such claims
which would not, singly or in the aggregate, result in a Material Adverse
Effect.
(xix) Investment
Company Act. The
Company is not, and following the sale of the Securities as contemplated herein,
will not be required to register as an “investment company” as such term is
defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(xx) Environmental
Laws. Except
as described in the Registration Statement or in a document incorporated by
reference therein or except as would not, singly or in the aggregate, result in
a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries
is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all permits,
licenses, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C) there
are no pending or, to the Company's knowledge, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Company or any of its subsidiaries and (D)
there are no events, facts or circumstances that might reasonably be expected to
form the basis of any order, decree, plan or agreement requiring clean-up or
remediation, or any action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to any Hazardous Materials or any Environmental
Laws.
(xxi) Registration
Rights. There
are no persons with registration rights or other similar rights to have any
securities (1) registered pursuant to the Registration Statement (except for
rights which have been complied with or waived) or (2) otherwise registered by
the Company under the 1933 Act (except as described in the Prospectus or in a
document incorporated by reference therein).
(xxii) Stabilization
or Manipulation. Neither
the Company nor any of its executive officers, directors or, to its knowledge,
controlling persons has taken, directly or indirectly, any action designed to
cause or to result in, or that has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale of the Securities.
(xxiii) Accounting
Controls and Disclosure Controls. The
Company and its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are executed
in accordance with management's general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets;
(C) access to assets is permitted only in accordance with management’s general
or specific authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The Company and its consolidated
subsidiaries employ disclosure controls and procedures that are designed to
ensure that information required to be disclosed by the Company in the reports
that it files or submits under the 1934 Act is recorded, processed, summarized
and reported, within the time periods specified in the Commission’s rules and
forms, and is accumulated and communicated to the Company’s management,
including its principal executive officer or officers and principal financial
officer or officers, as appropriate to allow timely decisions regarding
disclosure.
(xxiv) Tax
Returns. The
Company and its subsidiaries have filed all federal, state, local and foreign
tax returns that are required to have been filed by them pursuant to applicable
foreign, federal, state, local or other law or have duly requested extensions
thereof, except insofar as the failure to file such returns or request such
extensions would not reasonably be expected to result in a Material Adverse
Effect, and has paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Company and its Subsidiaries, except for such taxes
or assessments, if any, as are being contested in good faith and as to which
adequate reserves have been provided or where the failure to pay would not
reasonably be expected to result in a Material Adverse Effect. The charges,
accruals and reserves on the books of the Company in respect of any income and
corporation tax liability of the Company and each subsidiary for any years not
finally determined are adequate to meet any assessments or re-assessments for
additional income tax for any years not finally determined, except to the extent
of any inadequacy that would not reasonably be expected to result in a Material
Adverse Effect.
(xxv) Suppliers.
To the
Company’s knowledge, no supplier of merchandise or gasoline to the Company or
any of its subsidiaries has ceased shipments of merchandise to the Company or
indicated to the Company or an executive officer of the Company an interest in
decreasing or ceasing its sales to the Company or otherwise materially modifying
its relationship with the Company, other than in the normal and ordinary course
of business consistent with past practices between the Company and such
supplier.
(b) Representations
and Warranties by the Selling Shareholders. Each
Selling Shareholder severally represents and warrants to the Underwriter with
respect to itself as of the date hereof (with such representations and
warranties being made as of the date hereof) and as of the Closing Time (with
such representations and warranties being made as of the Closing Time), and
agrees with the Underwriter, as follows:
(i) Accurate
Disclosure. Such
Selling Shareholder has reviewed and is familiar with the Registration Statement
and the Prospectus and neither the Prospectus nor any amendments or supplements
thereto (including any prospectus wrapper) includes any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, provided, however, that with respect to each Selling
Shareholder this representation shall be limited to information provided by such
Selling Shareholder in writing expressly for use in the Registration Statement
or Prospectus or any amendments or supplements thereto.
(ii) Authorization
of this Agreement. Such
Selling Shareholder has the full right, power and authority to enter into this
Agreement and to sell, transfer and deliver the Securities to be sold by such
Selling Shareholder hereunder. This Agreement has been duly authorized, executed
and delivered by or on behalf of such Selling Shareholder.
(iii) Noncontravention. The
execution and delivery of this Agreement and the sale and delivery of the
Securities to be sold by such Selling Shareholder and the consummation of the
transactions contemplated herein and compliance by such Selling Shareholder with
its obligations hereunder do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any tax,
lien, charge or encumbrance upon the Securities to be sold by such Selling
Shareholder or any property or assets of such Selling Shareholder pursuant to
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which such Selling
Shareholder is a party or by which such Selling Shareholder may be bound, or to
which any of the property or assets of such Selling Shareholder is subject, nor
will such action result in any violation of the provisions of the charter or
by-laws or other organizational instrument of such Selling Shareholder, if
applicable, or any applicable treaty, law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over such Selling Shareholder or any of
its properties. Such Selling Shareholder has no registration rights with respect
to the Registration Statement other than rights which have been complied with by
the Company or waived by such Selling Shareholder.
(iv) Certificates
Suitable for Transfer. The
Securities to be sold by such Selling Shareholder pursuant to this Agreement are
certificated securities in registered form and are not held in any securities
account or by or through any securities intermediary within the meaning of the
Uniform Commercial Code as in effect in the State of New York (the “UCC”).
Certificates for all of the Securities to be sold by such Selling Shareholder
pursuant to this Agreement, in suitable form for transfer by delivery or
accompanied by duly executed instruments of transfer or assignment in blank with
signatures guaranteed, will prior to the Closing Time be delivered to Wachovia
Bank, N.A. with irrevocable conditional instructions to deliver such Securities
to the Underwriter pursuant to this Agreement.
(v) Valid
Title. Such
Selling Shareholder has, and at the Closing Time will have, valid title to the
Securities to be sold by such Selling Shareholder, free and clear of all
security interests, claims, liens, equities or other encumbrances, and has the
legal right and power, and all authorization and approval required by law, to
sell, transfer and deliver the Securities to be sold by such Selling Shareholder
or a valid security entitlement in respect of such Securities.
(vi) Delivery
of Securities. Upon
payment of the purchase price for the Securities to be sold by such Selling
Shareholder pursuant to this Agreement, delivery of such Securities, as directed
by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be
designated by The Depository Trust Company (“DTC”), registration of such
Securities in the name of Cede or such other nominee, and the crediting of such
Securities on the books of DTC to securities accounts of the Underwriter
(assuming that neither DTC nor the Underwriter has “notice” of any “adverse
claim,” within the meaning of Section 8-105 of the UCC, to such Securities), (A)
DTC shall be a “protected purchaser,” within the meaning of Section 8-303 of the
UCC, of such Securities and will acquire its interest in the Securities
(including, without limitation, all rights that such Selling Shareholder had or
has the power to transfer in such Securities) free and clear of any adverse
claim within the meaning of Section 8-102 of the UCC, (B) under Section 8-501 of
the UCC, the Underwriter will acquire a valid security entitlement in respect of
such Securities and (C) no action (whether framed in conversion, replevin,
constructive trust, equitable lien, or other theory) based on any “adverse
claim”, within the meaning of Section 8-102 of the UCC, to such Securities may
be asserted against the Underwriter with respect to such security
entitlement.
(vii) Absence
of Manipulation. Such
Selling Shareholder has not taken, and will not take, directly or indirectly,
any action which is designed to or which has constituted or which would
reasonably be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Securities.
(viii) Absence
of Further Requirements. No
filing with, or consent, approval, authorization, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the performance by each
Selling Shareholder of its obligations hereunder, or in connection with the sale
and delivery of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as may have previously been made or
obtained under the 1933 Act or the 1933 Act Regulations or state securities laws
and except for any filings which may be required after the date hereof pursuant
to Sections 13 and 16 of the 1934 Act.
(ix) No
Association with NASD. Neither
such Selling Shareholder nor any of its affiliates (within the meaning of NASD
Conduct Rule 2720(b)(1)(a)) directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
or is an associated person of (within the meaning of Article I, Section 1(q) of
the By-laws of the National Association of Securities Dealers, Inc.), any member
firm of the National Association of Securities Dealers, Inc.
(x) Due
Organization. Each
Selling Shareholder has been duly organized and is validly existing as a limited
partnership in good standing in the jurisdiction of its
organization.
(c) Officer's
Certificates. Any
certificate signed by any officer of the Company or any of its subsidiaries
delivered to the Underwriter or to counsel for the Underwriter shall be deemed a
representation and warranty by the Company to the Underwriter as to the matters
covered thereby, and any certificate signed by or on behalf of a Selling
Shareholder as such and delivered to the Underwriter or to counsel for the
Underwriter shall be deemed a representation and warranty by such Selling
Shareholder to the Underwriter as to the matters covered thereby.
SECTION
2. Sale
and Delivery to Underwriter; Closing.
(a) Securities. On the
basis of the representations and warranties herein contained and subject to the
terms and conditions herein set forth, each Selling Shareholder, severally and
not jointly, agrees to sell to the Underwriter, and the Underwriter agrees to
purchase from each Selling Shareholder, at a price per share of $31.72 the
number of Securities set forth in Schedule A opposite the name of such Selling
Shareholder.
(b) Payment. Payment
of the purchase price for, and delivery of certificates for, the Securities
shall be made at the offices of Fried, Frank, Harris, Shriver & Jacobson
LLP, One New York Plaza, New York, New York 10004, or at such other place as
shall be agreed upon by the Underwriter, the Company and the Selling
Shareholders, at 9:00 A.M. (Eastern time) on March 11, 2005, or such other
time not later than ten business days after such date as shall be agreed upon by
the Underwriter, the Company and the Selling Shareholders (such time and date of
payment and delivery being herein called "Closing Time").
Payment
shall be made to the Selling Shareholders by wire transfer of immediately
available funds to bank accounts designated by the Selling Shareholders against
delivery to the Underwriter of certificates for the Securities.
(c) Denominations;
Registration.
Certificates for the Securities shall be in such denominations and registered in
such names as the Underwriter may request in writing at least two full business
days before the Closing Time. The certificates for the Securities will be made
available for examination and packaging by the Underwriter in The City of New
York not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time.
SECTION
3. Covenants
of the Company. The
Company covenants with the Underwriter as follows:
(a) Compliance
with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 415
of the 1933 Act Regulations, and will notify the Underwriter immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or any document incorporated by reference therein
or for additional information, and (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
of any order preventing or suspending the use of any preliminary prospectus, or
of the suspension of the qualification of the Securities for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings for any
of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) under the 1933 Act and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing
of Amendments. The
Company will give the Underwriter notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under Rule 462(b))
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Underwriter with copies of any such documents a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file or use any
such document to which the Underwriter or counsel for the Underwriter shall
object.
(c) Delivery
of Registration Statements. The
Company has furnished or will deliver to the Underwriter and counsel for the
Underwriter, without charge, conformed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein) and conformed copies of all
consents and certificates of experts, and will also deliver to the Underwriter,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits). The copies of the
Registration Statement and each amendment thereto furnished to the Underwriter
have been or will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(d) Delivery
of Prospectuses. The
Company will furnish to the Underwriter, without charge, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus (as amended or supplemented) as the
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriter will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued
Compliance with Securities Laws. The
Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the distribution
of the Securities as contemplated in this Agreement and in the Prospectus. If at
any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriter or for the Company, to amend the Registration Statement or amend
or supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriter such number
of copies of such amendment or supplement as the Underwriter may reasonably
request.
(f) Blue
Sky Qualifications. The
Company will use its best efforts, in cooperation with the Underwriter, to
qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as the
Underwriter may designate and to maintain such qualifications in effect for a
period of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement; provided,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Securities have
been so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
(g) Rule
158. The
Company will timely file such reports pursuant to the 1934 Act as are necessary
in order to make generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933
Act.
(h) Listing. The
Company will use its reasonable best efforts to maintain the quotation of the
Common Stock (including the Securities) on the Nasdaq National Market and will
file with the Nasdaq National Market all documents and notices required by the
Nasdaq National Market of companies that have securities that are traded in the
over-the-counter market and quotations for which are reported by the Nasdaq
National Market, including, when required, a notification of change in the
number of shares of common stock outstanding.
(i) Reporting
Requirements. The
Company, during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, will file all documents required to be filed with
the Commission pursuant to the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
SECTION
4. Payment
of Expenses.
(a) Expenses. The
Company will pay all expenses incident to the performance of its obligations
under this Agreement, including (i) the preparation, printing and filing of
the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the printing and
delivery to the Underwriter of this Agreement and such other documents as may be
required in connection with the offering, purchase, sale, or delivery of the
Securities, (iii) the preparation and delivery of the certificates for the
Securities to the Underwriter, including any stock or other transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriter, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) the qualification of
the Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriter in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriter of copies of the
Prospectus and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriter of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriter in connection
with, the review by the NASD of the terms of the sale of the Securities, and (x)
the fees and expenses incurred in connection with the inclusion of the
Securities in the Nasdaq National Market.
(b) Expenses
of the Selling Shareholders. The
Selling Shareholders, severally but not jointly, will pay all expenses incident
to the performance of their respective obligations under, and the consummation
of the transactions contemplated by this Agreement, including (i) any stamp
duties, capital duties and stock transfer taxes, if any, payable upon the sale
of the Securities to the Underwriter, and (ii) the fees and disbursements of
their respective counsel and other advisors (unless the Company is otherwise
required to or agrees to pay such expenses).
(c) Termination
of Agreement. If this
Agreement is terminated by the Underwriter in accordance with the provisions of
Section 5 or Section 9(a)(i) hereof, the Company shall reimburse the
Underwriter for all of its reasonable out-of-pocket expenses incurred, including
the reasonable fees and disbursements of counsel for the
Underwriter.
(d) Allocation
of Expenses. The
provisions of this Section shall not affect any agreement that the Company and
any Selling Shareholder may make for the sharing of costs and
expenses.
SECTION
5. Conditions
of the Underwriter’s Obligations. The
obligations of the Underwriter hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company or on behalf of any Selling Shareholder
delivered pursuant to the provisions hereof, to the performance by the Company
and the Selling Shareholders of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness
of Registration Statement. The
Registration Statement, including any Rule 462(b) Registration Statement, has
become and remains effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the Underwriter.
The Prospectus, as supplemented by the prospectus supplement relating to the
offering of the Securities, shall have been filed with the Commission in
accordance with Rule 424(b) under the 1933 Act within the applicable time period
prescribed for such filing by the regulations promulgated under the 1933 Act and
in accordance with Section 3(a) hereof.
(b) Opinion
of Counsel for Company. At
Closing Time, the Underwriter shall have received the favorable opinions, dated
as of Closing Time, of Smith, Anderson, Blount, Dorsett, Mitchell &
Jernigan, L.L.P., counsel for the Company, Leath, Bouch & Crawford LLP,
South Carolina counsel to the Company, and Smith Hulsey & Busey, Florida
counsel to the Company, in each case in form and substance reasonably
satisfactory to counsel for the Underwriter, in the form set forth in Exhibits
A, C and D hereto and to such further effect as counsel to the Underwriter may
reasonably request. Such counsel may state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(c) Opinion
of Counsel for the Selling Shareholders. At
Closing Time, the Underwriter shall have received the favorable opinion, dated
as of Closing Time, of O’Melveny & Myers LLP, counsel for the Selling
Shareholders, in form and substance reasonably satisfactory to counsel for the
Underwriter, in the form set forth in Exhibit B hereto and to such further
effect as counsel to the Underwriter may reasonably request. Such counsel may
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of the Selling Shareholders
and certificates of public officials.
(d) Opinion
of Counsel for Underwriter. At
Closing Time, the Underwriter shall have received the favorable opinion, dated
as of Closing Time, of Fried, Frank, Harris, Shriver & Jacobson LLP, counsel
for the Underwriter, with respect to the matters set forth in clauses (i), (iv),
(v), and (vi) of Exhibit A hereto and in clause (2) of Exhibit B hereto. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public
officials.
(e) Officers'
Certificates. At
Closing Time, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Underwriter shall have received a certificate of the President
or a Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct
with the same force and effect as though expressly made at and as of Closing
Time, (iii) the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied under this Agreement at or prior to Closing
Time, and
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(f) Certificate
of Selling Shareholders. At
Closing Time, the Underwriter shall have received a certificate on behalf of
each Selling Shareholder, dated as of Closing Time, to the effect that (i) the
representations and warranties of such Selling Shareholder contained in Section
1(b) hereof are true and correct in all respects with the same force and effect
as though expressly made at and as of Closing Time and (ii) such Selling
Shareholder has complied with all agreements and all conditions on its part to
be performed under this Agreement at or prior to Closing Time.
(g) Accountant’s
Comfort Letter. At
Closing Time, the Underwriter shall have received from Deloitte & Touche LLP
a letter in the form of Annex A hereto, dated as of Closing Time, in form and
substance satisfactory to the Underwriter, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the
Prospectus.
(h) Listing. At
Closing Time, the Securities shall continue to be listed on the Nasdaq National
Market.
(i) No
Objection. The NASD
has confirmed that it has not raised any objection with respect to the fairness
and reasonableness of the underwriting terms and arrangements or such
confirmation shall not be necessary in the view of the Underwriter.
(j) Lock-up
Agreements. At
Closing Time, the Underwriter shall have received an agreement substantially in
the form of Exhibit E hereto signed by the persons listed on Schedule B
hereto.
(k) Maintenance
of Rating. Since
the execution of this Agreement, there shall not have been any decrease in the
rating of any of the Company’s securities by any “nationally recognized
statistical rating organization” (as defined for purposes of Rule 436(g) under
the 1933 Act) or any notice given of any intended or potential decrease in any
such rating or of a possible change in any such rating that does not indicate
the direction of the possible change.
(l) Additional
Documents. At
Closing Time, counsel for the Underwriter shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Selling Shareholders in connection with the
issuance and sale of the Securities as herein contemplated shall be satisfactory
in form and substance to the Underwriter and counsel for the
Underwriter.
(m) Termination
of Agreement. If any
condition specified in this Section shall not have been fulfilled when and as
required to be fulfilled, this Agreement may be terminated by the Underwriter by
notice to the Company and the Selling Shareholders at any time at or prior to
Closing Time and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and
effect.
SECTION
6. Indemnification.
(a) Indemnification
of Underwriter. The
Company and the Selling Shareholders, severally and not jointly, agree to
indemnify and hold harmless the Underwriter, its affiliates, as such term is
defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”), its selling
agents and each person, if any, who controls the Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, in each case,
as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto), or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or arising
out of any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, provided that
(subject to Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against
any and all expense whatsoever, as incurred (including subject to Section 6(c)
the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
provided,
however, that
this indemnity agreement shall not apply to any loss, liability, claim, damage
or expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the Underwriter expressly
for use in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); provided,
further, that
the Company and the Selling Shareholders will not be liable to the Underwriter
or any person controlling the Underwriter with respect to any such untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus to the extent that the Company shall sustain the
burden of proving that any such loss, liability, claim, damage or expense
resulted from the fact that the Underwriter sold securities to a person to whom
the Underwriter failed to send or give, at or prior to the written confirmation
of the sale of such Securities, a copy of the Prospectus (as amended or
supplemented) if the Company has previously furnished copies thereof to the
Underwriter (sufficiently in advance of the Closing Time to allow for
distribution of the Prospectus in a timely manner) and complied with their
obligations under Sections 3(b), 3(c) and 3(d) hereof and the loss, liability,
claim, damage or expense of the Underwriter resulted from an untrue statement or
omission or alleged untrue statement or omission of a material fact contained in
or omitted from such preliminary prospectus (as amended or supplemented) which
was corrected in the Prospectus (as amended or supplemented); provided,
further, that
the liability of any Selling Shareholder under this Section shall be limited to
an amount not exceeding the proceeds received by such Selling Shareholder from
the sale of Securities hereunder (before deducting the underwriting discount and
expenses). Notwithstanding the foregoing, the liability of any Selling
Shareholder under this Section shall be limited to information furnished in
writing by such Selling Shareholder to the Company or the Underwriter expressly
for use in the Registration Statement or any preliminary prospectus or the
Prospectus.
(b) Indemnification
of Company, Directors and Officers and Selling Shareholders. The
Underwriter agrees to indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act, and each Selling Shareholder and each person, if
any, who controls any Selling Shareholder within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions
against Parties; Notification. Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) above, counsel to the indemnified parties shall be selected by
Merrill Lynch, and in the case of indemnification pursuant to Section 6(b)
above, counsel to such indemnified parties shall be selected by the Company and
reasonably acceptable to the Selling Shareholders. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement
without Consent if Failure to Reimburse. If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(e) Other
Agreements with Respect to Indemnification. The
provisions of this Section shall not affect any agreement among the Company and
the Selling Shareholders with respect to indemnification.
SECTION
7. Contribution. If the
indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriter on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Shareholders on
the one hand and of the Underwriter on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriter on the other hand in connection with the offering
of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the Selling Shareholders and the total underwriting discount
received by the Underwriter, in each case as set forth on the cover of the
Prospectus, bear to the aggregate public offering price of the Securities as set
forth on such cover.
The
relative fault of the Company and the Selling Shareholders on the one hand and
the Underwriter on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Shareholders or by the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The
Company, the Selling Shareholders and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 7, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which the Underwriter has otherwise
been required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For
purposes of this Section 7, each person, if any, who controls the Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and the Underwriter’s Affiliates and selling agents shall have the same rights
to contribution as the 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 or any Selling Shareholder within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company or such Selling Shareholder, as the case
may be.
The
provisions of this Section shall not affect any agreement among the Company and
the Selling Shareholders with respect to contribution.
SECTION
8. Representations,
Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries or the
Selling Shareholders submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
the Underwriter or its Affiliates or selling agents, any person controlling the
Underwriter, its officers or directors or any person controlling the Company or
any person controlling any Selling Shareholder, and shall survive delivery of
the Securities to the Underwriter.
SECTION
9. Termination
of Agreement.
(a) Termination;
General. The
Underwriter may terminate this Agreement, by notice to the Company and the
Selling Shareholders, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus (exclusive of any
supplement thereto), any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred
any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Underwriter, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the Nasdaq National Market, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United
States, or (v) if a banking moratorium has been declared by either Federal or
New York authorities.
(b) Liabilities. If this
Agreement is terminated pursuant to this Section, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION
10. Default
by one or more of the Selling Shareholders. If a
Selling Shareholder shall fail at Closing Time to sell and deliver the number of
Securities which such Selling Shareholder or Selling Shareholders are obligated
to sell hereunder, and the remaining Selling Shareholders do not exercise the
right hereby granted to increase, pro rata or otherwise, the number of
Securities to be sold by them hereunder to the total number to be sold by all
Selling Shareholders as set forth in Schedule A hereto, then the Underwriter
may, at its option, by notice from the Underwriter to the Company and the
non-defaulting Selling Shareholders, either (i) terminate this Agreement without
any liability on the fault of any non-defaulting party except that the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or
(ii) elect to purchase the Securities which the non-defaulting Selling
Shareholders have agreed to sell hereunder. No action taken pursuant to this
Section 10 shall relieve any Selling Shareholder so defaulting from liability,
if any, in respect of such default.
In the
event of a default by any Selling Shareholder as referred to in this
Section 10, each of the Underwriter, the Company and the non-defaulting
Selling Shareholders shall have the right to postpone Closing Time for a period
not exceeding seven days in order to effect any required change in the
Registration Statement or Prospectus or in any other documents or
arrangements.
SECTION
11. Tax
Disclosure.
Notwithstanding any other provision of this Agreement, from the commencement of
discussions with respect to the transactions contemplated hereby, the Company
(and each employee, representative or other agent of the Company) may disclose
to any and all persons, without limitation of any kind, the tax treatment and
tax structure (as such terms are used in Sections 6011, 6111 and 6112 of the
U.S. Code and the Treasury Regulations promulgated thereunder) of the
transactions contemplated by this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided relating to such
tax treatment and tax structure.
SECTION
12. Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriter shall be directed to it at 4 World
Financial Center, New York, New York 10080, attention of Equity Capital Markets;
with a copy to Fried, Frank, Harris, Shriver & Jacobson LLP, One New York
Plaza, New York, New York 10004, attention of Valerie Ford Jacob, Esq.; notices
to the Company shall be directed to it at The Pantry, Inc., 1801 Douglas Drive,
Sanford, North Carolina 27330, attention of Dan Kelly, with a copy to Smith,
Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP, 2500 Wachovia Capitol
Center, Post Office Box 2611, Raleigh, North Carolina 27602-2611, attention of
Carl N. Patterson; and notices to the Selling Shareholders shall be directed to
them c/o Freeman Spogli & Co., 599 Lexington Avenue, 18th Floor,
New York, NY 10022, attention of Todd Halloran, with a copy to O’Melveny &
Myers LLP, Times Square Tower, 7 Times Square, New York, New York 10036,
attention of Nicole Macarchuk.
SECTION
13. Parties. This
Agreement shall each inure to the benefit of and be binding upon the
Underwriter, the Company and the Selling Shareholders and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriter, the Company and the Selling Shareholders and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriter,
the Company and the Selling Shareholders and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from the Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION
14. GOVERNING
LAW AND TIME. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION
15. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same Agreement.
SECTION
16. Effect
of Headings. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company and the Selling Shareholders a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriter, the Company and the Selling Shareholders in
accordance with its terms.
| |
|
|
| |
Very
truly yours, |
| |
|
| |
THE PANTRY,
INC. |
|
|
|
|
By: |
/s/ John Roth |
| |
|
| |
Name: John Roth
Title: Vice
President |
| |
|
|
| |
FS Equity Partners III,
L.P. |
| |
|
|
| |
By: FS
Capital Partners, L.P.,
its
General Partner |
|
|
|
| |
By: FS
Holdings, Inc.,
its
General Partner |
| |
|
|
|
By: |
/s/ John Roth |
| |
|
| |
Name: John Roth
Title: Vice
President |
| |
|
|
| |
FS Equity Partners IV,
L.P. |
| |
|
|
| |
By: FS
Capital Partners LLC,
its
General Partner |
|
|
|
|
By: |
/s/ John Roth |
| |
|
| |
Name: John Roth
Title: Vice
President |
| |
|
|
| |
FS Equity Partners
International, L.P. |
| |
|
|
| |
By: FS&Co.
International, L.P.,
its
General Partner |
|
|
|
| |
By: FS
International Holdings Ltd.,
its
General Partner |
| |
|
|
|
By: |
/s/ John Roth |
| |
|
| |
Name: John Roth
Title: Vice
President |
|
CONFIRMED AND ACCEPTED,
as
of the date first above written: |
| |
|
|
MERRILL LYNCH & CO.
MERRILL
LYNCH, PIERCE, FENNER & SMITH
INCORPORATED |
| |
|
|
By
|
|
| |
|
| |
Authorized
Signatory |
SCHEDULE
A
| |
Number
of
Securities
to be Sold |
|
| |
|
|
| |
|
|
| |
|
|
|
FS
Equity Partners III, L.P. |
1,402,939 |
|
|
FS
Equity Partners IV, L.P. |
690,598 |
|
|
FS
Equity Partners International, L.P. |
56,463 |
|
| |
|
|
| |
|
|
|
Total |
2,150,000 |
|
SCHEDULE
B
LIST OF
PERSONS AND ENTITIES SUBJECT TO LOCK-UP
FS Equity
Partners III, L.P.
FS Equity
Partners IV, L.P.
FS Equity
Partners International L.P.
Exhibit
A
FORM OF
OPINION OF
SMITH,
ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.
TO BE
DELIVERED PURSUANT TO SECTION 5(b)
Merrill
Lynch, Pierce, Fenner & Smith
Incorporated
World
Financial Center, North Tower
New York,
New York 10080
Ladies
and Gentlemen:
We have
acted as counsel for The Pantry, Inc., a Delaware corporation (the “Company”), in
connection with that certain Purchase Agreement (the “Purchase
Agreement”) dated
as of March 8, 2005 between the Company, the persons listed in Schedule A
thereto (the “Selling
Shareholders”), and
Merrill Lynch & Co. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the “Underwriter”),
relating to the sale by the Selling Shareholders, acting severally and not
jointly, and the purchase by the Underwriter of the respective numbers of shares
of Common Stock, par value $.01 per share, of the Company (the “Common
Stock”) set
forth in Schedule A thereto. This opinion is delivered to you in compliance
with Section 5(b) of the Purchase Agreement. Capitalized terms used in this
letter and not otherwise defined herein shall have the same meanings as are
ascribed to them in the Purchase Agreement.
We have
reviewed such documents and considered such matters of law and fact as we, in
our professional judgment, have deemed appropriate to render the opinions
contained herein. These documents included, among other things, the
following:
(a) The
Amended and Restated Certificate of Incorporation of the Company, as amended to
date (the “Certificate
of Incorporation”);
(b) The
Amended and Restated Bylaws of the Company, as amended to date (the
“Bylaws”);
(c) The
records of certain proceedings and actions of the Board of Directors of the
Company relating to the transactions contemplated by the Purchase Agreement,
which have been certified to us as constituting all of the proceedings and
actions relating thereto;
(d) The
Purchase Agreement;
(e) The
Registration Statement and the Prospectus;
(f) The
Company’s Annual Report on Form 10-K for the fiscal year ended September 30,
2004 (the “Form
10-K”);
and
(g) The
contracts filed either as exhibits to the Registration Statement (or any report
incorporated by reference into the Registration Statement) or identified on
Exhibit
B attached
hereto.
Where we
have considered it appropriate, as to certain facts we have relied with your
permission, without investigation or analysis of any underlying data contained
therein, upon (i) certificates or other comparable documents of public
officials, and (ii) certificates of officers of the Company who by position we
believe are responsible (including, without limitation, the officers’
certificate dated March 11, 2005 referred to as the “Officers’ Certificate” in
our opinions below and attached hereto as Exhibit
A). In
rendering our opinion that the Company is “validly existing as a corporation”
and “is in good standing” under the laws of the State of Delaware, we have
relied solely upon a Certificate of Good Standing regarding the Company from the
Delaware Secretary of State dated March __, 2005.
Except as
otherwise specifically identified below, in rendering our opinions concerning
the Company’s corporate power to operate its business as described in the
Prospectus, we have relied solely upon the Officers’ Certificate to identify the
jurisdictions in which the conduct of such entity’s business is material to the
operations of the Company and its subsidiaries taken as a whole. Furthermore, we
have relied upon and assumed the correctness of the representations and
warranties of the Company, as to matters of fact, contained in the Purchase
Agreement. Except as relates to the authorization, execution and delivery by the
Company of the Purchase Agreement and of other documents executed and delivered
by the Company in connection therewith or in connection with the other matters
regarding which we opine herein, we have assumed without investigation (i) the
due promulgation and validity of all statutes, regulations, administrative
procedures, determinations, permits and orders, (ii) the authenticity and
completeness of all documents submitted to us as originals, (iii) the conformity
to authentic original documents and completeness of each document submitted to
us as a copy, (iv) the genuineness of all signatures and authority of all
signatories that are on such originals or copies, (v) that there have been no
modifications, waivers or amendments to any of the agreements or other documents
we have reviewed, and (vi) that the certificates of public officials dated
earlier than the date hereof remain accurate from such earlier date through and
including the date hereof.
We have
assumed for the purposes of the opinions below, other than with respect to the
Company, that each of the parties who have executed the agreements and contracts
referred to herein as individuals have sufficient legal capacity to execute the
same, that each of the other parties to the agreements and contracts referred to
herein is duly incorporated or organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or organization; that each
such party has the requisite corporate or other organizational power and
authority to perform its obligations under such agreements and contracts, as
applicable; and that such agreements and contracts have been duly authorized,
executed and delivered by, and each of them constitutes the legally valid and
binding obligation of, such parties other than the Company, as applicable,
enforceable against such other parties in accordance with their respective
terms.
The
phrases “to our knowledge” and “known to us” mean the conscious awareness by
lawyers in the primary lawyer group of factual matters such lawyers recognize as
being relevant to the opinion or confirmation so qualified. “Primary lawyer
group” means any lawyer in this firm (i) who signs this opinion letter, (ii) who
is actively involved in negotiating or documenting the transactions contemplated
by the Purchase Agreement or in reviewing the Registration Statement and
Prospectus for purposes of the transactions contemplated by the Purchase
Agreement or who has rendered significant legal services to the Company in the
past twelve (12) months, or (iii) solely as to information relevant to a
particular opinion or factual confirmation issue, who is primarily responsible
for providing the response concerning the particular opinion or
issue.
The
opinions set forth herein are limited to matters governed by the laws of the
State of North Carolina, the General Corporation Law of the State of Delaware
(the “Delaware
General Corporation Law”), and
the federal laws of the United States, and no opinion is expressed herein as to
the laws of any other jurisdiction. We express no opinion concerning any matter
respecting or affected by any laws other than laws that a lawyer in North
Carolina with experience in similar transactions exercising customary
professional diligence would reasonably recognize as being directly applicable
to the Company, the transactions contemplated by the Purchase Agreement, or
both.
We have
participated in conferences and discussions with officers and other
representatives of the Company, representatives of the Selling Shareholders,
representatives of the independent public accountants for the Company, and
representatives of the Underwriter at which the contents of the Registration
Statement and the Prospectus and any amendments or supplements thereto made by
the Company prior to the date hereof and related matters were discussed and have
conducted such other review as we deemed necessary, and although we are not
passing upon and do not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or the
Prospectus and any amendments or supplements thereto made by the Company prior
to the date hereof (except to the extent set forth in paragraph (x) below), no
facts have come to our attention that have caused us to believe that the
Registration Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus, as of its date and as of the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that we express no belief as to the financial statements, notes thereto, other
financial data and supporting schedules included in, or incorporated by
reference in, the Registration Statement or Prospectus or omitted
therefrom).
Based
upon and subject to the foregoing, and subject to the additional assumptions,
qualifications and limitations set forth below, it is our opinion
that:
(i) The
Company is validly existing as a corporation and is in good standing under the
laws of the State of Delaware.
(ii) The
Company has the corporate power to execute, deliver and perform its obligations
under the Purchase Agreement and to operate its business as described in the
Prospectus.
(iii) The
shares of issued and outstanding capital stock of the Company, including the
Securities to be purchased by the Underwriter from the Selling Shareholders,
have been duly
authorized and validly issued and are fully paid and non-assessable; and none of
the outstanding shares of capital stock of the Company was issued in violation
of the preemptive rights of any security holder of the Company imposed by the
Delaware General Corporation Law, the Certificate of Incorporation or Bylaws, or
any contract listed as an exhibit to the Registration Statement (or any report
incorporated by reference into the Registration Statement) or on Exhibit
B
hereto.
(iv) The
Purchase Agreement has been duly authorized, executed and delivered by the
Company.
(v) The
Registration Statement has been declared effective under the 1933 Act; any
required filing of the Prospectus pursuant to Rule 424(b) under the 1933 Act has
been made in the manner and within the time period required by Rule 424(b); and,
to our knowledge, (a) no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and (b) no proceedings
for that purpose have been instituted or are pending or threatened by the
Commission.
(vi) The
Registration Statement, the Prospectus, and each amendment or supplement to the
Registration Statement and Prospectus, as of their respective effective or issue
dates (other than the financial
statements, notes thereto, other financial data and supporting schedules
included therein or omitted therefrom, as to
which we express no opinion) complied as to form in all material respects with
the requirements of the 1933 Act and the rules and regulations of the Commission
thereunder (the “1933 Act Regulations”).
(vii) The
documents incorporated by reference in the Prospectus (other than the financial
statements, notes thereto, other financial data and supporting schedules
included therein or omitted therefrom, as to which we express no opinion), when
they became effective or were filed, as amended, with the Commission, as the
case may be, complied as to form in all material respects with the requirements
of the Securities Exchange Act of 1934, as amended (the “1934
Act”), and
the rules and regulations of the Commission thereunder (the “1934
Act Regulations”).
(viii) The form
of certificate to be used to evidence the Securities complies in all material
respects with all applicable statutory requirements and with any applicable
requirements of the Certificate of Incorporation and Bylaws.
(ix) To our
knowledge and other than as disclosed in the Registration Statement or the
documents incorporated by reference in the Registration Statement, there is not
pending or threatened any action, suit, proceeding, inquiry or investigation, to
which the Company or any subsidiary of the Company is a party, or to which the
property of the Company or any subsidiary is subject, before or brought by any
court or governmental agency or body, which would result in a Material Adverse
Effect, or which would materially and adversely affect the consummation of the
transactions contemplated in the Purchase Agreement or the performance by the
Company of its obligations thereunder.
(x) The
information in the Form 10-K under “Business—Government
Regulation and Environmental Matters” (with respect to United States federal and
North Carolina state laws and regulations), and in the Prospectus under “Shares
Eligible for Future Sale” and in the Registration Statement under Item 15,
to the
extent that it constitutes summaries of laws or documents, fairly summarizes the
legal matters and documents therein described. The information in the Prospectus
under "Material United States Tax Considerations for Non-U.S. Holders of the
Common Stock" has been reviewed by us and fairly summarizes the legal matters
therein described.
(xi) To our
knowledge, there are no contracts, indentures, mortgages, loan agreements,
notes, leases or other contractual instruments required to be described in or
filed as exhibits to the Registration Statement or the documents incorporated by
reference in the Registration Statement other than those described or referred
to therein or filed or incorporated by reference as exhibits
thereto.
(xii) No filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any governmental authority, agency, body or court of
the State of North Carolina, the State of Delaware (with respect to the Delaware
General Corporation Law) or the United States is required in connection with (A)
the execution, delivery and performance of the Purchase Agreement by the Company
or (B) the offering, sale or delivery of the Securities, except (i) as may be
required under state securities or blue sky laws (as to which we express no
opinion) or (ii) as have been obtained and, in the case of filings, such filings
have been made under the 1933 Act.
(xiii) (A) The
execution and delivery by the Company of the Purchase Agreement, the performance
by the Company of its obligations therein, and the consummation of the
transactions contemplated in the Purchase Agreement (i) do not violate the
Certificate of Incorporation or Bylaws, (ii) do not constitute a breach of or
result in a default or Repayment Event (as defined in Section 1(a)(xi) of the
Purchase Agreement) under any Other Agreement (except for such breaches,
defaults or Repayment Events as would not have a Material Adverse Effect);
provided that we express no opinion with respect to any covenant, restriction or
provision with respect to financial ratios, financial tests or other financial
requirements, and (iii) do not violate the terms of any Court Order. For
purposes hereof, (a) the term “Other
Agreement” means
any of those agreements listed as an exhibit to the Registration Statement (or a
report incorporated by reference in the Registration Statement) or on
Exhibit
B attached
hereto and (b) the term “Court
Order” means
any judicial or administrative judgment, order, decree or arbitral decision that
names the Company and is specifically directed to it or its properties and that
is listed on the Officers’
Certificate or that is known to us.
(B) The
execution and delivery by the Company of the Purchase Agreement and the
performance by the Company of its obligations therein, do not violate applicable
provisions of federal, North Carolina or Delaware (with respect to the Delaware
General Corporation Law) statutory laws or regulations (except any antifraud
laws or regulations as to which we express no opinion) which in our experience
are normally applicable to transactions of the type contemplated by the Purchase
Agreement, and the consummation of the transactions contemplated in the Purchase
Agreement does not violate applicable provisions of federal, North Carolina or
Delaware (with respect to the Delaware General Corporation Law) statutory laws
or regulations (except any antifraud laws or regulations as to which we express
no opinion).
(C) The
execution and delivery by the Company of the Purchase Agreement and the
performance by the Company of its obligations therein do not result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary of the Company pursuant to any Other
Agreement (except for such liens, charges or encumbrances as would not have a
Material Adverse Effect); provided that we express no opinion with respect to
any covenant, restriction or provision with respect to financial ratios,
financial tests or other financial requirements.
(xiv) To our
knowledge, except as disclosed in the Registration Statement, there are no
persons with registration rights to have any securities registered pursuant to
the Registration Statement or otherwise registered by the Company under the 1933
Act.
(xv) The
Company is not required to be registered as an “investment company” as such term
is defined in the Investment Company Act of 1940, as amended.
The
foregoing opinions are subject to the following additional assumptions,
qualifications and limitations:
(A) The
opinion expressed in paragraph (iii) hereof to the extent it concerns matters
relating to the shares of Common Stock that were authorized and issued on or
prior to June 14, 1999 and any preemptive rights related thereto, other than the
shares of Common Stock being sold by the Selling Shareholders pursuant to the
Purchase Agreement, is based solely upon, and is subject to the assumptions,
qualifications and limitations set forth in, paragraphs (iv), (v) and (vi) of
the opinion of Riordan & McKenzie, a professional law corporation, a copy of
which is attached as Exhibit
C.
(B) We are
members of the Bar of the State of North Carolina only. As to matters relating
to the laws of the State of South Carolina, you have received and relied
exclusively upon, the opinion of Leath, Bouch & Crawford LLP of even date
herewith, subject to all of the assumptions, qualifications, limitations and
exceptions set forth in such opinion. As to matters relating to the laws of the
State of Florida, you have received and relied exclusively upon, the opinion of
Smith, Hulsey & Busey of even date herewith, subject to all of the
assumptions, qualifications, limitations and exceptions set forth in such
opinion. As to certain matters relating to the Selling Shareholders and as to
matters relating to the laws of the State of New York, you have received and
relied exclusively upon, the opinion of O’Melveny & Myers LLP of even date
herewith, subject to all of the assumptions, qualifications, limitations and
exceptions set forth in such opinion. We are not opining on, and we assume no
responsibility as to, the applicability to or effect on any of the matters
covered herein of the laws of the States of Delaware, South Carolina, Florida,
New York or any other jurisdiction other than the federal law of the United
States, North Carolina state law and the Delaware General Corporation Law. In
addition, we are not expressing any opinion as to the effect of compliance by
the Underwriter or any shareholder of the Company with any state or federal laws
or regulations applicable to the transactions contemplated by the Purchase
Agreement because of the nature of any of their businesses or actions. We
express no opinion with respect to state securities or “blue sky”
laws.
(C) For
purposes of the opinion expressed in paragraph (ix) related to any pending or
threatened action, suit, proceeding, inquiry or investigation which would result
in a Material Adverse Effect, or which would materially and adversely affect the
consummation of the transactions contemplated in the Purchase Agreement or the
performance by the Company of its obligations thereunder, we have
not, with your permission, reviewed federal or state court dockets.
(D) In
rendering our opinion in paragraph (xii), we have assumed that no person
(including affiliates) who does not currently own at least twenty-five percent
(25%) of the issued and outstanding Common Stock, will own twenty-five percent
(25%) or more of the issued and outstanding Common Stock after the consummation
of the transactions contemplated by the Purchase Agreement.
(E) We have
no knowledge of any, and this letter assumes no (i) misrepresentation,
intentional omission or deceit by the Company or any officer, director or other
person or (ii) violation of any fiduciary duty owed to the Company or to any
third person or entity.
(F) We have
made no examination of, and no opinion is given herein as to, any Selling
Shareholder’s title to or other ownership rights in, or the existence of any
liens, charges, encumbrances, restrictions or limitations on, or adverse claims
against, any of the property or assets of any Selling Shareholder, including any
Selling Shareholder’s shares of the Common Stock.
This
opinion letter is delivered to you solely for your benefit in connection with
the transactions contemplated by the Purchase Agreement and may not be used or
relied upon by any other person or for any other purpose without our prior
written consent in each instance. We bring to your attention the fact that our
legal opinions are an expression of professional judgment and not a guarantee of
a result. Our opinions expressed herein are as of the date hereof, and we
undertake no obligation to advise you of any changes in applicable law or any
other matters that may come to our attention after the date hereof that may
affect our opinions expressed herein.
Pantry
Contracts
1. R.R
Morrison & Son, Inc. Asset Purchase Agreement dated 11/9/00
2. East
Coast Oil Asset Purchase Agreement dated 1/5/01
3. Amendment
to BP Branded Jobber Contract dated 2/14/03
|
4. |
Assignment of Exxon Franchise Agreement from Golden Gallon to Pantry dated
10/15/03 and the agreement between Exxon and Golden Gallon dated
4/1/02 |
5. Chevron
Branded Petroleum Products Agreement effective 1/1/04
6. Star
Enterprises Wholesale Marketing Agreement (Texaco) dated 7/1/98
|
7. |
Petroleum Transportation Agreement between Mansfield Systems, Inc. and the
Pantry dated 11/11/99 |
|
8. |
Florida Lottery Contract dated 8/21/02 |
9. Georgia
Lottery Contract dated 5/17/00
|
10. |
Letter Agreement for petroleum transport between Eagle Transport Corp. and
the Pantry dated 7/16/98 |
|
11. |
Citgo Location Transfer Agreement among Golden Gallon, the Pantry and
Citgo dated 9/30/03 |
|
12. |
Terminaling Agreement between Pantry and Citgo dated
10/16/03 |
13. Master
Contract between SEI Environmental, Inc. and the Pantry dated
11/25/03
Exhibit
B
FORM OF
OPINION OF O’MELVENY & MYERS LLP
TO BE
DELIVERED PURSUANT TO SECTION 5(c)
Merrill
Lynch & Co.
Merrill
Lynch, Pierce, Fenner & Smith
Incorporated
World
Financial Center
North
Tower
New York,
NY 10080
Re: The
Pantry, Inc. - Registered Secondary Offering
Ladies
and Gentlemen:
We have
acted as special counsel to FS Equity Partners III, L.P. (“FSEP
III”), FS
Equity Partners IV, L.P. (“FSEP
IV”) and FS
Equity Partners International, L.P. (“FSEP
International”, and
together with FSEP III and FSEP IV, the “Selling
Stockholders”) in
connection with the Purchase Agreement dated as of March 8, 2005 (the
“Purchase
Agreement”) among
The Pantry, Inc., a Delaware corporation (the “Company”), the
Selling Stockholders and yourself (the “Underwriter”),
relating to, among other things, the sale to the Underwriters by the Selling
Stockholders of 2,150,000 shares (the “Selling
Stockholder Shares”) of the
Company’s Common Stock, $0.01 par value per share, pursuant to the Purchase
Agreement. We are providing this opinion letter to you pursuant to Section
5(c) of the
Purchase Agreement.
In our
capacity as such counsel, we have examined originals or copies of those limited
partnership and other records and documents we considered appropriate,
certificates of public officials and of officers of the Selling Stockholders,
and other documents deemed necessary for the purpose of this opinion letter
including:
| a. |
the
Purchase Agreement; |
| b. |
the
limited partnership agreements and certificates of limited partnership of
each of the Selling Stockholders (each, an "Organizational
Document,"
and collectively, the "Organizational
Documents"); |
| c. |
the
officer’s certificate of FSEP III attached hereto as Annex A (the
“FSEP
III Officer's Certificate”);
|
| d. |
the
officer’s certificate of FSEP IV attached hereto as Annex B (the
“FSEP
IV Officer’s Certificate”);
|
| e. |
the
officer’s certificate of FSEP International attached hereto as Annex C
(the “FSEP
International Officer’s Certificate”,
and together with the FSEP III Officer’s Certificate and the FSEP IV
Officer’s Certificate, the “Certificates”);
|
| f. |
the
registration rights agreement dated as of December 30, 1996 by and among
the Company, FSEP III and FSEP International (the “1996
Registration Rights Agreement”);
and |
| g. |
the
registration rights agreement dated as of July 2, 1998 by and among the
Company, the Selling Stockholders and the other parties named therein (the
“1998
Registration Rights Agreement”
and together with the 1996 Registration Rights Agreement, the
“Registration
Rights Agreements”). |
As to
matters of fact (including matters of fact set forth in this opinion letter), we
have relied upon, among other things: (a) representations and warranties of the
Selling Stockholders set forth in the Purchase Agreement; (b) certificates of
officers of the Selling Stockholders, including, without limitation, the
Certificates; and (c) certificates of public officials we considered
appropriate.
We have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity with originals of all documents
submitted to us as copies. To the extent that any Selling Stockholder’s
obligations depend on the enforceability of the Purchase Agreement against the
other parties thereto, we have assumed that the Purchase Agreement is
enforceable against such other parties.
On the
basis of such examination, our reliance upon the assumptions in this opinion
letter and our consideration of those questions of law we considered relevant,
and subject to the limitations and qualifications in this opinion letter, we are
of the opinion that:
| 1. |
The
execution and delivery of the Purchase Agreement have been duly authorized
by all necessary action under the current Delaware Revised Uniform Limited
Partnership Act (the “Delaware
Partnership Act”)
and the Organizational Documents on the part of each Selling
Stockholder. |
| 2. |
The
execution and delivery by the Selling Stockholders of the Purchase
Agreement do not, and the Selling Stockholders’ performance of their
respective obligations under the Purchase Agreement will not, (i) violate
their respective Organizational Documents; (ii) violate, breach, or result
in a default under, the Registration Rights Agreements; (iii) violate the
current Delaware Partnership Act or any current New York or federal
statute, rule or regulation that we have, in the exercise of customary
professional diligence, recognized as applicable to the Selling
Stockholders or to transactions of the type contemplated by the Purchase
Agreement, except that rights with respect to indemnification and
contribution contained in Sections 6 and 7 of the Purchase Agreement may
be limited under applicable laws; and (iv) violate any existing obligation
of, or restriction on, the Selling Stockholders under any order, judgment
or decree of any Delaware or federal court or governmental authority
binding on the Selling Stockholders and identified in the
Certificates. |
| 3. |
No
order, consent, permit or approval of any New York or federal governmental
authority that we have, in the exercise of customary professional
diligence, recognized as applicable to the Selling Stockholders or to
transactions of the type contemplated by the Purchase Agreement is
required on the part of any Selling Stockholder for the execution and
delivery of, and performance of each Selling Stockholder’s respective
obligations under, the Purchase Agreement which have not been obtained
except for (i) any such order, consent, permit or approval which has been
duly obtained and is in full force and effect and (ii) such as may be
required by the National Association of Securities Dealers,
Inc. |
| 4. |
Upon
payment for and delivery of each of the certificates representing the
Selling Stockholder Shares to the Underwriter in the State of New York in
accordance with the Purchase Agreement, assuming (i) the Underwriter is
acquiring the Selling Stockholder Shares without notice of any adverse
claim, (ii) the Underwriter makes payment therefor as provided therein,
(iii) such Selling Stockholder Shares are delivered to the Underwriter in
accordance with the provisions of the Purchase Agreement and (iv) the
Underwriter obtains control of such Selling Stockholder Shares (within the
meaning of Section 8106 of the New York Uniform Commercial Code (the
“NYUCC”)),
the Underwriter is a “protected purchaser” of such Selling Stockholder
Shares (within the meaning of Section 8-303 of the NYUCC) and the
Underwriter will acquire the Selling Stockholder Shares free and clear of
any adverse claim as defined in Article 8 of the
NYUCC. |
| a. |
For
purposes of the opinions expressed in paragraphs 3 and 4 above, we have
assumed that the Selling Stockholders will not in the future take any
discretionary action (including a decision not to act) permitted by the
Purchase Agreement that would cause the performance of the Purchase
Agreement to violate any respective Organizational Document of the Selling
Stockholders, the Delaware Partnership Act, any order, judgment or decree
of any Delaware or federal court or governmental authority binding on such
Selling Stockholder or any current New York or federal statute, rule or
regulation or require an order, consent, permit or approval to be obtained
from a New York, Delaware or federal governmental
authority. |
| b. |
We
express no opinion regarding (i) federal securities laws or regulations,
(ii) Blue Sky or state securities laws or regulations or (iii) insurance
laws or regulations. |
The law
covered by this opinion letter is limited to the present federal law of the
United States, the present law of the State of New York and the present Delaware
Partnership Act. We express no opinion as to the laws of any other jurisdiction
and no opinion regarding the statutes, administrative decisions, rules,
regulations or requirements of any county, municipality, subdivision or local
authority of any jurisdiction.
This
opinion letter is furnished by us as counsel for the Selling Stockholders, and
may be relied upon by you only in connection with the purchase and sale of the
Selling Stockholder Shares. It may not be used or relied upon by you for any
other purpose or by any other person, nor may copies be delivered to any other
person, without in each instance our prior written consent. This opinion letter
is expressly limited to the matters set forth above, and we render no opinion,
whether by implication or otherwise, as to any other matters. We assume no
obligation to update or supplement this opinion letter to reflect any facts or
circumstances that arise after the date of this opinion letter and come to our
attention, or any future changes in laws.
Respectfully
submitted,
Exhibit
C
FORM OF
OPINION OF LEATH, BOUCH & CRAWFORD LLP
TO BE
DELIVERED PURSUANT TO SECTION 5(b)
Merrill
Lynch & Co.
Merrill
Lynch, Pierce, Fenner & Smith
Incorporated
World
Financial Center
North
Tower
New York,
New York 10080
| |
RE: |
Purchase
Agreement dated as of March 8, 2005, among The Pantry, Inc., the Selling
Stockholders named therein and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated (the "Purchase
Agreement") |
Ladies
and Gentlemen:
We have
acted as South Carolina counsel to The Pantry, Inc., a Delaware corporation, and
R&H Maxxon, Inc., a South Carolina corporation (the "Subsidiary"), in
connection with the Purchase Agreement. Capitalized terms used herein without
definition have the same meanings as in the Purchase Agreement.
In our
capacity as such counsel, we have examined forms or copies, identified to our
satisfaction, of such corporate records, documents and other instruments as in
our judgment are necessary or appropriate to enable us to render the opinions
expressed below. These records, documents and instruments included the Purchase
Agreement, the Registration Statement, and the Prospectus, or relevant
provisions thereof.
We also
have examined copies of such corporate records, documents, certificates of
public officials and officers and other representatives of the Subsidiary and
the Company and other instruments as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below.
For
purposes of this opinion, we have assumed, without any independent investigation
or verification of any kind, (i) the due promulgation and validity of all
statutes, regulations, administrative procedures, determinations, permits, and
orders; (ii) the authenticity and completeness of all documents submitted
to us as originals; (iii) the conformity to authentic original documents
and completeness of all documents submitted to us as certified, conformed, or
photostatic copies; (iv) that neither the original Purchase Agreement executed
by the parties, the Registration Statement, nor the Prospectus have been
modified or amended in any material respect
from the forms or drafts thereof submitted to us for review; and (v) that the
certificates of public officials dated earlier than the date hereof remain
accurate from such earlier date through and including the date
hereof.
We have
assumed that the parties to the Purchase Agreement have the requisite power and
authority to enter into the Purchase Agreement; that the Purchase Agreement has
been duly authorized, executed, and delivered by each such party, that valid
consideration has been given by each of the parties thereto; that no person or
entity that did not have a twenty-five percent (25%) ownership interest before
the offering will have it after; and that the Purchase Agreement constitutes the
legal, binding, and valid obligations of each such party, enforceable against
each such party in accordance with its terms.
We have
made such factual and legal examinations and inquiries as we have deemed
advisable for the purpose of rendering the opinions expressed below, except
where a statement is qualified as to knowledge, in which case we have made a
limited inquiry as specified below. We have not undertaken any independent
investigation other than inquiring of officers of the Subsidiary or the Company,
as necessary, to determine the accuracy of any such statement, and no inference
that we have any knowledge on any matters pertaining to such statement should be
drawn from our representation of the Company or the Subsidiary.
With
respect to the good standing and authorization of the Subsidiary to transact
business in the State of South Carolina, we have relied exclusively on a
certificate provided to us by the South Carolina Secretary of
State.
Based
upon and subject to the foregoing, and subject to the additional qualifications
and limitations set forth below, we are of the opinion that, as of the date
hereof:
1. The
Subsidiary has been duly incorporated and is validly existing as a corporation
in good standing under the laws of South Carolina, has corporate power and
authority to own, lease and operate its properties and to conduct its business
as currently conducted and is duly qualified as a corporation to transact
business and is in good standing in South Carolina.
2. Except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of the Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, to the best of our knowledge, is
owned by The Pantry, Inc., directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of the Subsidiary was issued in
violation of the preemptive rights of any securityholder of such
Subsidiary.
3. No filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any South Carolina court or governmental authority
or agency (other than as may be required under the securities or blue sky laws,
as to which we need express no opinion) is necessary or required in connection
with the due authorization, execution and delivery of the Purchase Agreement or
for the offering, issuance, sale or delivery of the Securities.
4. The
execution, delivery and performance of the Purchase Agreement and the
consummation of the transactions contemplated in the Purchase Agreement and in
the Registration Statement (including the sale of the securities) do not and
will not, whether with or without the giving of notice or lapse of time or both,
(1) result in any violation of the provisions of the charter or by-laws of the
Subsidiary, (2) result in any violation of any applicable South Carolina law,
statute, rule or regulation, or (3) result in any violation of any applicable
judgment, order, writ or decree of any South Carolina government, government
instrumentality or court having jurisdiction over the Company or the Subsidiary
or any of their respective properties, assets or operations.
5. The
information in the Company’s Form 10-K in “Business--Government Regulation and
Environmental Matters” (with respect to South Carolina laws and regulations) has
been reviewed by us and correctly summarizes current South Carolina laws and
regulations referred to therein.
The
foregoing opinions are subject to the following assumptions, qualifications and
limitations:
a. This
opinion is subject to the effect of applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium, and similar
laws.
b. This
opinion is subject to the effect of general principles of equity (regardless of
whether considered in a proceeding in equity or at law).
c. We
express no opinion as to any matter except as expressly set forth in paragraphs
1-5, above.
d. We are
members of the Bar of the State of South Carolina and express no opinion as to
the laws of any jurisdiction other than the State of South
Carolina.
e. This
opinion is rendered pursuant to Section 5(b) of the Purchase Agreement
and
may be relied upon only by you.
f. Our
opinions expressed herein are as of the date hereof, and we undertake no
obligation to advise you of any changes in applicable law or any other matters
that may come to our attention after the date hereof and that may affect our
opinions expressed herein.
g. We bring
to your attention the fact that our legal opinions are an expression of
professional judgment and are not a guarantee of a result.
Very truly
yours,
LEATH, BOUCH &
CRAWFORD, LLP
Timothy W.
Bouch
Exhibit
D
FORM OF
OPINION OF SMITH HULSEY & BUSEY
TO BE
DELIVERED PURSUANT TO SECTION 5(b)
Merrill
Lynch & Co.
Merrill
Lynch, Pierce, Fenner & Smith
Incorporated
World
Financial Center
North
Tower
New York,
New York 10080
|
RE: |
Purchase
Agreement dated as of March 8, 2005 (the "Purchase Agreement") between The
Pantry, Inc., a Delaware corporation ("Pantry"), the Selling Stockholders
named therein and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith, Incorporated |
Gentlemen:
This
opinion letter is provided to you by us as Florida counsel to The Pantry, Inc.
(the “Company”) pursuant to Section 5(b) of the Purchase Agreement. Capitalized
terms used herein without definition that are defined in or by reference in the
Purchase Agreement shall have the same meaning herein as they have in the
Purchase Agreement
While we
have represented the Company on a regular basis since November 1997, our
engagement has been limited to specific matters in Florida that the Company’s
management has referred to our firm.
In
connection with this opinion, we have examined copies of the (i) Purchase
Agreement, (ii) Pantry’s registration statement on Form S-3 (File No.
333-116972) (the "Registration Statement") and (iii) the prospectus included as
Part I of the Registration Statement, together with the prospectus supplement
dated March 8, 2005 (the "Prospectus"). In addition, we have examined such other
documents as we have deemed necessary or appropriate to express the opinions set
forth herein, as well as originals or copies, certified or otherwise identified
to our satisfaction, of other documents and records of public officials and
officers of the Company as we have deemed necessary or appropriate to enable us
to render the opinions expressed herein. In rendering the opinions expressed
herein, we have assumed the genuineness of all signatures, the authenticity of
documents submitted to us as originals and the conformity to original or
certified copies of all copies submitted to us as a certified, conformed or
reproduction copies.
With
respect to questions of fact material to the opinions expressed herein, we have
relied, with your permission, solely upon (i) written and oral statements of the
Company, (ii) the representations and warranties of the Company in the Purchase
Agreement and (iii) certificates of public officials, in each case without any
independent inquiry, verification or examination by us. With respect to opinion
number three (3) below, our representation of the Company regarding its
compliance with Florida laws and regulations relating to the ownership and
operation of underground petroleum storage tanks has been limited during the
past several years to assisting the Company from time to time with (a) issues
relating to site access, contamination and remediation at specific locations
that are being sold or at which leases are expiring or being terminated and (b)
specific pending or threatened disputes with neighboring landowners at several
locations regarding existing contamination.
This
opinion letter has been prepared and is to be construed in accordance with the
Report on Standards for Florida Opinions dated April 8, 1991, as updated on
September 4, 1998, issued by the Business Law Section of The Florida Bar (the
"Report"). The Report is incorporated by reference into this opinion
letter.
We are
admitted to the practice of law only in the State of Florida, and nothing herein
shall be construed to be an opinion as to the effect of the laws of any
jurisdiction other than the State of Florida.
Based
upon and subject to the qualifications and limitations stated in this letter and
the Report, we are of the opinion that:
1. No filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any Florida court, governmental authority or agency
(other than as may be required under the securities or blue sky laws, as to
which we express no opinion) is necessary or required in connection with the
offering, issuance, sale or delivery of the Securities.
2. The
execution, delivery and performance by the Company of the Purchase Agreement and
the consummation of the transactions contemplated in the Purchase Agreement and
in the Registration Statement (including the sale of the Securities) do not and
will not, whether with or without the giving of notice or lapse of time or both,
result in any violation of any applicable Florida law, statute, rule or
regulation (other than as may be required under the securities or blue sky laws,
as to which we express no opinion).
3. The
description of Florida laws and regulations regarding underground petroleum
storage tanks in the Company’s Form 10-K under “Business—Government Regulations
and Environmental Matters—Storage and Sale of Gasoline” (with respect to Florida
laws and regulations) has been reviewed by us and is, to our knowledge, accurate
in all material respects.
This
opinion letter is furnished to you by us as Florida counsel to the Company, is
solely for your benefit and is rendered solely in connection with the
transactions contemplated by the Purchase Agreement. The opinions contained
herein may be relied upon only in connection with the transactions contemplated
by the Purchase Agreement and, except in connection with opinions of counsel
rendered pursuant to the Purchase Agreement, may not be delivered, quoted to, or
relied upon by, any other person, without our prior written
consent.
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Very truly yours,
SMITH HULSEY &
BUSEY |
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By: |
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A
Shareholder |
Exhibit
E
_______________,
2005
Merrill
Lynch & Co.
Merrill
Lynch, Pierce, Fenner & Smith
Incorporated
World
Financial Center
North
Tower
New York,
New York 10080
|
Re: |
Proposed
Public Offering of Shares of Common Stock of The Pantry,
Inc. |
Dear
Sirs:
The
undersigned, a stockholder, officer, director and/or employee of The Pantry,
Inc., a Delaware corporation (the “Company”), understands that Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill
Lynch”) proposes to enter into an Underwriting Agreement (the “Underwriting
Agreement”) with the Company and certain stockholders of the Company (the
“Selling Stockholders”) providing for the public offering (the “Offering”) of
shares (the “Shares”) of the Company’s common stock, par value $0.01 per share
(the “Common Stock”). In recognition of the benefit that such an offering will
confer upon the undersigned as a stockholder, officer, director and/or employee
of the Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with
Merrill Lynch that, during a period of 30 days from the date of the Underwriting
Agreement, the undersigned will not, without the prior written consent of
Merrill Lynch, directly or indirectly, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant for the sale of, make any short sale
or otherwise dispose of or transfer any shares of the Company’s Common Stock, or
any options or warrants to purchase any shares of the Company’s Common Stock, or
any securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition
(collectively, the “Securities”), or request or demand that the Company file any
registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Securities, whether any
such swap or transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise. The foregoing restriction is expressly agreed
to preclude the undersigned from engaging in any hedging or other transaction
which is designed to or which reasonably could be expected to lead to or result
in a sale or disposition of the undersigned’s Securities even if such securities
would be disposed of by someone other than the undersigned. Such prohibited
hedging or other transactions would include without limitation any short sale or
any purchase, sale or grant of any right (including without limitation any put
or call option) with respect to any of the undersigned’s Securities or with
respect to any security that
includes, relates to, or derives any significant part of its value from such
Securities. Notwithstanding the foregoing, the undersigned may (without the
consent of Merrill Lynch): (a) sell the Shares to the Underwriter pursuant to
the Underwriting Agreement; (b) exercise Securities convertible into shares of
Common Stock owned by the undersigned as of the date of the Underwriting
Agreement, it being understood and acknowledged that any shares of Common Stock
acquired by the undersigned in connection with any such exercise or conversion
shall be subject to this letter agreement; (c) if the undersigned is an
individual, transfer Securities (i) by bona fide gift or (ii) to a member of the
undersigned’s immediate family or to a trust of which the undersigned or an
immediate family member is the beneficiary; or (d) if the undersigned is a
corporation, partnership or other business entity, transfer Securities to
another corporation, partnership or other business entity if the transferee and
the undersigned are direct or indirect affiliates or otherwise related (other
than as part of a pro rata distribution); provided that,
prior to any transfer described in clauses (c) or (d), each transferee shall
execute an agreement, in form reasonably satisfactory to Merrill Lynch, pursuant
to which each transferee shall agree to be bound by the terms of this agreement
for the remainder of the above-referenced 30-day period.
It is
understood that, if the Company notifies you that the Selling Stockholders do
not intend to proceed with the Offering, if the Underwriting Agreement does not
become effective, or if the Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the Shares, the undersigned will be released from
its, his or her obligations under this agreement. This agreement shall lapse and
become null and void if the Offering shall not have occurred on or before March
15, 2005.
Notwithstanding
the foregoing, if:
(1)
during the last 17 days of the 30-day lock-up period the Company issues an
earnings release or material news or a material event relating to the Company
occurs; or
(2) prior
to the expiration of the 30-day lock-up period, the Company announces that it
will release earnings results during the 16-day period beginning on the last day
of the 30-day lock-up period,
the
restrictions imposed by this letter shall continue to apply until the expiration
of the 18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
This lock-up letter is dated March 8,
2005.
Very truly
yours,
Signature:
__________________________
Print Name:
_________________________
Annex
A
DELOITTE
& TOUCHE LLP
FORM OF
ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(g)
(i) We are
independent public accountants with respect to the Company within the meaning of
the 1933 Act and the applicable published 1933 Act Regulations.
(ii) In our
opinion, the audited financial statements and the related financial statement
schedules of the Company included and incorporated by reference in the
Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
published rules and regulations thereunder.
(iii) With
respect to the three months ended December 30, 2004, we have (1) performed the
procedures specified by the American Institute of Certified Public Accountants
for a review of interim financial information as described in SAS No. 100, on
the unaudited consolidated balance sheets and unaudited consolidated statements
of operations and cash flows as of and for the three months ended December 30,
2004, and (2) inquired of certain officials of the Company who have
responsibility for financial and accounting matters as to whether the unaudited
condensed consolidated financial data referred to in (iii)(1) above are stated
on a basis substantially consistent with that of the audited consolidated
financial statements incorporated by reference in the Registration
Statement.
Nothing
came to our attention as a result of the foregoing procedures, however, that
caused us to believe that any material modifications should be made to the
unaudited consolidated financial statements described in (iii)(1) above for them
to be in conformity with generally accepted accounting principles or that the
unaudited consolidated financial statements described in (iii)(1) above do not
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the related rules and regulations adopted by
the Commission thereunder.
(iv) In
addition, on the basis of procedures (but not an examination in accordance with
generally accepted auditing standards) consisting of a reading of the latest
available unaudited interim consolidated financial statements of the Company, a
reading of the minutes of all meetings of the stockholders and directors of the
Company and its subsidiaries and the committees of the Company's Board of
Directors and any subsidiary committees since September 30, 2004, inquiries of
certain officials of the Company and its subsidiaries responsible for financial
and accounting matters, and such other inquiries and procedures as may be
specified in such letter, nothing came to our attention that caused us to
believe that:
(1) at
February 30, 2005 and at March 8, 2005, there was any change in the capital
stock of the Company and its subsidiaries or any decrease in the working
capital, total current assets, total assets or stockholders’ equity of the
Company and its subsidiaries or any increase in the total current liabilities or
total debt of the Company and its subsidiaries, in each case as compared with
amounts shown in the latest balance sheet included in the Registration
Statement, except in each case for changes, decreases or increases that the
Registration Statement discloses have occurred; or
(2) for the
period from December 30, 2004 to February 28, 2005, and for the period from
December 30, 2004 to March 8, 2005, there was any decrease in total revenues,
income from operations, income before income taxes, net income, or earnings
before interest, taxes, depreciation and amortization, in each case as compared
with the comparable period in the preceding year, except in each case for any
decreases that the Registration Statement discloses have occurred or may
occur;
(v) Based
upon the procedures set forth in clauses (iii) and (iv) above and a reading of
the Selected Financial Data incorporated by reference in the Registration
Statement and a reading of the financial statements from which such data were
derived, nothing came to our attention that caused us to believe that the
Selected Financial Data incorporated by reference in the Registration Statement
do not comply as to form in all material respects with the disclosure
requirements of Item 301 of Regulation S-K of the 1933 Act, that the amounts
included in the Selected Financial Data are not in agreement with the
corresponding amounts in the audited consolidated financial statements for the
respective periods or that the financial statements not included in the
Registration Statement from which certain of such data were derived are not in
conformity with generally accepted accounting principles;
(vi) We have
compared the information in the Registration Statement under selected captions
with the disclosure requirements of Regulation S-K of the 1933 Act and on the
basis of limited procedures specified herein, nothing came to our attention that
caused us to believe that this information does not comply as to form in all
material respects with the disclosure requirements of Items 402 and 503(d),
respectively, of Regulation S-K;
(vii) In
addition to the procedures referred to in clause (iv) above, we have performed
other procedures, not constituting an audit, with respect to certain amounts,
percentages, numerical data and financial information appearing in the
Registration Statement, which are specified herein, and have compared certain of
such items with, and have found such items to be in agreement with, the
accounting and financial records of the Company.