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EXHIBIT 1.1
3,000,063 Shares
DYCOM INDUSTRIES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
DATED ___________ , 1998
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TABLE OF CONTENTS
SECTION 1. REPRESENTATIONS AND WARRANTIES .................................. 2
A. REPRESENTATIONS AND WARRANTIES OF THE COMPANY ......................... 2
Compliance With Registration Requirements ............................. 2
Offering Materials Furnished To Underwriters .......................... 3
Distribution Of Offering Materials By The Company ..................... 3
The Underwriting Agreement ............................................ 3
Authorization Of The Common Shares .................................... 4
No Applicable Registration Or Other Similar Rights .................... 4
No Material Adverse Change ............................................ 4
Independent Accountants ............................................... 4
Preparation Of The Financial Statements ............................... 5
Incorporation And Good Standing Of The Company And Its Subsidiaries ... 5
Capitalization And Other Capital Stock Matters ........................ 6
Stock Exchange Listing ................................................ 6
Non-Contravention Of Existing Instruments; No Further Authorizations
Or Approvals Required ............................................... 6
No Material Actions Or Proceedings .................................... 7
Intellectual Property Rights .......................................... 7
All Necessary Permits, Etc. ........................................... 7
Title To Properties ................................................... 8
Tax Law Compliance .................................................... 8
Company Not An Investment Company ..................................... 8
Insurance ............................................................. 8
No Price Stabilization Or Manipulation ................................ 9
Compliance With Environmental Laws .................................... 9
ERISA Compliance ...................................................... 10
Exchange Act Compliance ............................................... 10
Acquisition of CCI and ITI ............................................ 10
B. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS ............ 11
The Underwriting Agreement ............................................ 11
The Custody Agreement And Power Of Attorney ........................... 11
Title To Common Shares To Be Sold; All Authorizations Obtained ........ 11
Delivery Of The Common Shares To Be Sold .............................. 12
Non-Contravention; No Further Authorizations Or Approvals Required .... 12
No Registration Or Other Similar Rights ............................... 12
No Further Consents, Etc. ............................................. 12
Disclosure Made By Such Selling Stockholder In The Prospectus ......... 13
No Price Stabilization Or Manipulation ................................ 13
Confirmation Of Company Representations And Warranties ................ 13
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE COMMON SHARES ................ 13
The Firm Common Shares ................................................ 13
The First Closing Date ................................................ ▇▇
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▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇; The Second Closing Date.......................... 14
Public Offering Of The Common Shares......................................... 15
Payment For The Common Shares................................................ 15
Delivery Of The Common Shares................................................ 16
Delivery Of Prospectus To The Underwriters................................... 16
SECTION 3. ADDITIONAL COVENANTS..................................................... 16
A. COVENANTS OF THE COMPANY..................................................... 16
Underwriters' Review Of Proposed Amendments And Supplements.................. 16
Securities Act Compliance.................................................... 17
Amendments And Supplements To The Prospectus And Other Securities Act
Matters.................................................................... 17
Copies Of Any Amendments And Supplements To The Prospectus................... 17
Blue Sky Compliance.......................................................... 18
Use Of Proceeds.............................................................. 18
Transfer Agent............................................................... 18
Periodic Reporting Obligations............................................... 18
Agreement Not To Offer Or Sell Additional Securities......................... 18
Future Reports To The Underwriters........................................... 19
B. COVENANTS OF THE SELLING STOCKHOLDERS........................................ 19
Agreement Not To Offer Or Sell Additional Securities......................... 19
Delivery Of Forms W-8 And W-9................................................ 19
SECTION 4. PAYMENT OF EXPENSES...................................................... 20
SECTION 5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS........................ 21
Accountants' Comfort Letter.................................................. 21
Compliance With Registration Requirements; No Stop Order;
No Objection From NASD..................................................... 21
No Material Adverse Change Or Ratings Agency Change.......................... 22
Opinion Of Counsel For The Company........................................... 22
Opinion Of Counsel For The Underwriters...................................... 22
Officers' Certificate........................................................ 22
Bring-Down Comfort Letter.................................................... 23
Opinion Of Counsel For The Selling Stockholders.............................. 23
Selling Stockholders' Certificate............................................ 23
Selling Stockholders' Documents.............................................. 23
Lock-Up Agreement From Certain Stockholders Of The Company Other Than
Selling Stockholders....................................................... 24
Additional Documents......................................................... 24
SECTION 6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES.................................. 24
SECTION 7. EFFECTIVENESS OF THIS AGREEMENT.......................................... 25
SECTION 8. INDEMNIFICATION.......................................................... 25
Indemnification Of The Underwriters.......................................... 25
Indemnification Of The Company, Its Directors and Officers................... 26
Notifications And Other Indemnification Procedures........................... 27
Settlements.................................................................. 28
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SECTION 9. CONTRIBUTION............................................................. 29
SECTION 10. DEFAULT OF ONE OR MORE OF THE SEVERAL UNDERWRITERS....................... 30
SECTION 11. TERMINATION OF THIS AGREEMENT............................................ 31
SECTION 12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY...................... 32
SECTION 13. NOTICES.................................................................. 32
SECTION 14. SUCCESSORS............................................................... 33
SECTION 15. PARTIAL UNENFORCEABILITY................................................. 33
SECTION 16. GOVERNING LAW PROVISIONS................................................. 33
SECTION 17. FAILURE OF ONE OR MORE OF THE SELLING STOCKHOLDERS TO SELL AND DELIVER
COMMON SHARES............................................................ 34
SECTION 18. GENERAL PROVISIONS....................................................... 34
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UNDERWRITING AGREEMENT
, 1998
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NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
EVEREN SECURITIES
▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY, INC
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, LLC
c/o NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
INTRODUCTORY. Dycom Industries, Inc., a Florida corporation (the
"Company"), proposes to issue and sell to the several underwriters named in
Schedule A (the "Underwriters") an aggregate of 1,500,000 shares of its Common
Stock, par value $33 1/3 per share (the "Common Stock"); and the stockholders of
the Company named in Schedule B (collectively, the "Selling Stockholders")
severally propose to sell to the Underwriters an aggregate of 1,500,063 shares
of Common Stock. The 1,500,000 shares of Common Stock to be sold by the Company
and the 1,500,063 shares of Common Stock to be sold by the Selling Stockholders
are called the "Firm Common Shares". In addition, the Company has granted to the
Underwriters an option to purchase up to an additional 350,009 shares of Common
Stock and one of the Selling Stockholders has granted to the Underwriters an
option to purchase up to an additional 100,000 shares of Common Stock, as
indicated on Schedule B hereto. The additional 350,009 shares to be sold by the
Company and the additional 100,000 shares to be sold by the Selling Stockholders
as indicated on Schedule B hereto pursuant to such option are collectively
called the "Optional Common Shares". The Firm Common Shares and, if and to the
extent such option is exercised, the Optional Common Shares are collectively
called the "Common Shares".
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333- ), which contains a form of prospectus to be used in connection with
the public offering and sale of the Common Shares. Such registration statement,
as amended, including the financial statements, exhibits and schedules thereto,
in the form in which it was declared effective by the Commission under the
Securities Act of 1933 and the rules and regulations promulgated thereunder
(collectively, the "Securities Act"), including all documents incorporated or
deemed to be incorporated by reference therein and any information deemed to be
a part thereof at the time of effectiveness pursuant to Rule 430A or Rule 434
under the Securities Act or the Securities Exchange Act of 1934
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and the rules and regulations promulgated thereunder (collectively, the
"Exchange Act"), is called the "Registration Statement". Any registration
statement filed by the Company pursuant to Rule 462(b) under the Securities Act
is called the "Rule 462(b) Registration Statement", and from and after the date
and time of filing of the Rule 462(b) Registration Statement the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
Such prospectus, in the form first used by the Underwriters to confirm sales of
the Common Shares, is called the "Prospectus"; provided, however, if the Company
has, with the consent of NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC, elected to rely
upon Rule 434 under the Securities Act, the term "Prospectus" shall mean the
Company's prospectus subject to completion (each, a "preliminary prospectus")
dated , 1998 (such preliminary prospectus is called the "Rule 434
preliminary prospectus"), together with the applicable term sheet (the "Term
Sheet") prepared and filed by the Company with the Commission under Rules 434
and 424(b) under the Securities Act and all references in this Agreement to the
date of the Prospectus shall mean the date of the Term Sheet. All references in
this Agreement to the Registration Statement, the Rule 462(b) Registration
Statement, a preliminary prospectus, the Prospectus or the Term Sheet, or any
amendments or supplements to any of the foregoing, shall include any copy
thereof filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System ("▇▇▇▇▇"). All references in this Agreement to
financial statements and schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the Prospectus (and all
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement or the Prospectus,
as the case may be, and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include the filing of any document under the Exchange Act which is or
is deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
The Company and each of the Selling Stockholders hereby confirm their
respective agreements with the Underwriters as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents,
warrants and covenants to each Underwriter as follows:
(a) Compliance with Registration Requirements. The Registration Statement
and any Rule 462(b) Registration Statement have been declared effective by the
Commission under the Securities Act. The Company has complied to the
Commission's satisfaction with all requests of the Commission for additional or
supplemental information. To the best knowledge of the Company, no stop order
suspending the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement is in effect and no proceedings for such purpose have
been
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instituted or are pending or, to the best knowledge of the Company, are
contemplated or threatened by the Commission.
Each preliminary prospectus and the Prospectus when filed complied in all
material respects with the applicable requirements of the Securities Act and, if
filed by electronic transmission pursuant to ▇▇▇▇▇ (except as may be permitted
by Regulation S-T under the Securities Act), was identical to the copy thereof
delivered to the Underwriters for use in connection with the offer and sale of
the Common Shares. Each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto, at the time it
became effective and at all subsequent times, complied and will comply in all
material respects with the Securities Act and did not and will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
The Prospectus, as amended or supplemented, as of its date and at all subsequent
times, did not and will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
The representations and warranties set forth in the two immediately preceding
sentences do not apply to statements in or omissions from the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective
amendment thereto, or the Prospectus, or any amendments or supplements thereto,
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by the Underwriters expressly
for use therein. There are no contracts or other documents required to be
described in the Prospectus or to be filed as exhibits to the Registration
Statement which have not been described or filed as required.
(b) Offering Materials Furnished to Underwriters. The Company has delivered
to the Underwriters five complete manually signed copies of the Registration
Statement and of each consent and certificate of experts filed as a part
thereof, and conformed copies of the Registration Statement (without exhibits)
and preliminary prospectuses and the Prospectus, as amended or supplemented, in
such quantities and at such places as the Underwriters have reasonably
requested.
(c) Distribution of Offering Materials By the Company. The Company has not
distributed and will not distribute, prior to the later of the Second Closing
Date (as defined below) and the completion of the Underwriters' distribution of
the Common Shares, any offering material in connection with the offering and
sale of the Common Shares other than a preliminary prospectus, the Prospectus or
the Registration Statement.
(d) The Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of, the Company,
enforceable in accordance with its terms, except as rights to
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indemnification hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles.
(e) Authorization of the Common Shares. The Common Shares to be purchased
by the Underwriters from the Company have been duly authorized for issuance and
sale pursuant to this Agreement and, when issued and delivered by the Company
pursuant to this Agreement, will be validly issued, fully paid and
nonassessable.
(f) No Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included in
the offering contemplated by this Agreement, except for (i) such rights as have
been exercised by the Selling Stockholders in connection with this offering and
whose Common Shares have been included herein; (ii) those rights that have been
duly waived; and (iii) such rights that have been disclosed in the Prospectus.
(g) No Material Adverse Change. Except as otherwise disclosed in the
Prospectus, subsequent to the respective dates as of which information is given
in the Prospectus (i) there has been no material adverse change, or any
development that would reasonably be expected to result in a material adverse
change, in the condition, financial or otherwise, or in the earnings, business
or operations, whether or not arising from transactions in the ordinary course
of business, of the Company and its subsidiaries, considered as one entity (any
such change is called a "Material Adverse Change"), (ii) the Company and its
subsidiaries, considered as one entity have not incurred any material liability
or obligation, indirect, direct or contingent, not in the ordinary course of
business nor entered into any material transaction or agreement not in the
ordinary course of business; and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company or, except for
dividends paid to the Company or other subsidiaries, any of its subsidiaries on
any class of capital stock or repurchase or redemption by the Company or any of
its subsidiaries of any class of capital stock.
(h) Independent Accountants. Deloitte & Touche LLP who have expressed their
opinion with respect to the financial statements (which term as used in this
Agreement includes the related notes thereto) and supporting schedules of the
Company filed with the Commission as a part of the Registration Statement and
included in the Prospectus, are independent public or certified public
accountants as required by the Securities Act and the Exchange Act ▇▇▇▇▇▇ &
Associates, who have expressed their opinion with respect to the financial
statements (which term as used in this Agreement includes the related notes
thereto) and supporting schedules of Communications Construction Group, Inc.
("CCG") filed with the Commission, are
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independent public or certified public accountants as required by the
Securities Act and the Exchange Act.
(i) Preparation of the Financial Statements. The financial statements
filed with the Commission as a part of the Registration Statement and included
in the Prospectus present fairly the consolidated financial position of the
Company and its subsidiaries as of and at the dates indicated and the results of
their operations and cash flows for the periods specified. The financial
statements filed with the Commission as part of the Registration Statement and
included or incorporated by reference in the Prospectus present fairly the
consolidated financial position of CCG, CCI and ITI and their respective
subsidiaries as of and at the dates indicated and the results of their
operations and cash flows for the periods specified. The supporting schedules,
if any, included in the Registration Statement present fairly the information
required to be stated therein. Such financial statements and supporting
schedules, if any, have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved, except as may be expressly stated in the related notes thereto. No
other financial statements or supporting schedules are required to be included
in the Registration Statement. The financial data set forth in the Prospectus
under the captions "Prospectus Summary--Summary Consolidated Financial Data",
"Selected Consolidated Financial Data" and "Capitalization" fairly present the
information set forth therein on a basis consistent with that of the audited
financial statements contained in the Registration Statement.
(j) Incorporation and Good Standing of the Company and its Subsidiaries.
Each of the Company and its subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and, in the case of the Company, to enter into and perform its
obligations under this Agreement. Each of the Company and each subsidiary 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 for such jurisdictions where the failure to so qualify or to be
in good standing would not, individually or in the aggregate, result in a
Material Adverse Change. All of the issued and outstanding capital stock of each
subsidiary has been duly authorized and validly issued, is fully paid and
nonassessable and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance or
claim, except such as may arise pursuant to credit facilities described in the
Prospectus. The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries listed in
Exhibit 21 to the Company's Annual Report on Form 10-K for the year ended July
31, 1998 which is incorporated by reference in the Registration Statement.
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(k) Capitalization and Other Capital Stock Matters. The authorized, issued
and outstanding capital stock of the Company is as set forth in the Prospectus
under the column "Actual" under the caption "Capitalization" as of the date set
forth therein (other than for subsequent issuances, if any, pursuant to employee
benefit plans described in the Prospectus or upon exercise of outstanding
options described in the Prospectus), and the description of the Common Shares
in the Prospectus constitute a fair summary thereof. All of the issued and
outstanding shares of Common Stock (including the shares of Common Stock owned
by Selling Stockholders) have been duly authorized and validly issued, are fully
paid and nonassessable and have been issued in compliance with federal and state
securities laws. None of the outstanding shares of Common Stock were issued in
violation of any preemptive rights, rights of first refusal or other similar
rights to subscribe for or purchase securities of the Company. There are no
authorized or outstanding options, warrants, preemptive rights, rights of first
refusal or other rights to purchase, or equity or debt securities convertible
into or exchangeable or exercisable for, any capital stock of the Company or any
of its subsidiaries other than those accurately described in all material
respects in the Prospectus. The description of the Company's stock option, stock
bonus and other stock plans or arrangements, and the options or other rights
granted thereunder, set forth in the Prospectus accurately and fairly presents
in all material respects the information required to be shown with respect to
such plans, arrangements, options and rights.
(l) Stock Exchange Listing. The Common Stock, including the Common Shares,
is registered pursuant to Section 12(b) of the Exchange Act and is listed on the
New York Stock Exchange ("NYSE"), and the Company has taken no action designed
to, or likely to have the effect of, terminating the registration of the Common
Stock under the Exchange Act or delisting the Common Stock from the NYSE, nor
has the Company received any notification that the Commission or the NYSE is
contemplating terminating such registration or listing.
(m) Non-Contravention of Existing Instruments; No Further Authorizations
or Approvals Required. Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws or is in default (or, with the giving of
notice or lapse of time, would be in default) ("Default") under any indenture,
mortgage, loan or credit agreement, note, contract, franchise, lease or other
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound (including, without limitation, the
Company's Amended and Restated Credit Facility Agreement, dated as of April 29,
1998, with a group of banks led by Dresdner Bank Lateinamerika AG), or to which
any of the property or assets of the Company or any of its subsidiaries is
subject (each, an "Existing Instrument"), except for such Defaults as would
not, individually or in the aggregate, result in a Material Adverse Change. The
Company's execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby and by the Prospectus (i)
have been duly authorized by all necessary corporate action and
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will not result in any violation of the provisions of the charter or by-laws of
the Company or any subsidiary, (ii) will not conflict with or constitute a
breach of, or Default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, or require the consent of any other party to, any
Existing Instrument, except for such conflicts, breaches, Defaults, liens,
charges or encumbrances as would not, individually or in the aggregate, result
in a Material Adverse Change and (iii) will not result in any violation of any
law, administrative regulation or administrative or court decree applicable to
the Company or any subsidiary, except such as would not, individually or in the
aggregate, result in a Material Adverse Change. No consent, approval,
authorization or other order of, or registration or filing with, any court or
other governmental or regulatory authority or agency, is required for the
Company's execution, delivery and performance of this Agreement and consummation
of the transactions contemplated hereby and by the Prospectus, except such as
have been obtained or made by the Company and are in full force and effect under
the Securities Act and such as may be required under applicable state
securities or blue sky laws.
(n) No Material Actions or Proceedings. There are no legal or governmental
actions, suits or proceedings pending or, to the best of the Company's
knowledge, threatened against or affecting the Company or any of its
subsidiaries, which if determined adversely to the Company or its subsidiaries,
would reasonably be expected to result in a Material Adverse Change or adversely
affect the consummation of the transactions contemplated by this Agreement. No
material labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the best of the Company's knowledge, is threatened or
imminent.
(o) Intellectual Property Rights. The Company and it subsidiaries own no
material trademarks, trade names, patent rights, copyrights, licenses,
approvals, trade secrets and other similar rights (collectively, "Intellectual
Property Rights"). Neither the Company nor any of its subsidiaries has received
any notice of infringement or conflict with asserted Intellectual Property
Rights of others, which infringement or conflict, if the subject of an
unfavorable decision, would result in a Material Adverse Change.
(p) All Necessary Permits, etc. The Company and each subsidiary possess
such valid and current certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies necessary to
conduct their respective businesses, except such certificates, authorizations
and permits the failure to obtain which will not, individually or in the
aggregate, result in a Material Adverse Change and neither the Company nor any
subsidiary has received any notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such certificate, authorization or
permit which, singly or in the
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aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Change.
(q) Title to Properties. The Company and each of its subsidiaries has good
and marketable title to all the properties and assets reflected as owned in the
financial statements referred to in Section 1(A)(i) above (or elsewhere in the
Prospectus), in each case free and clear of any security interests, mortgages,
liens, encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such property and do not materially
interfere with the use made or proposed to be made of such property by the
Company or such subsidiary or such as may arise pursuant to credit facilities
described in the Prospectus. The real property, improvements, equipment and
personal property held under lease by the Company or any subsidiary are held
under valid and enforceable leases, with such exceptions as are not material and
do not materially interfere with the use made or proposed to be made of such
real property, improvements, equipment or personal property by the Company or
such subsidiary.
(r) Tax Law Compliance. Except as disclosed in the Prospectus, the Company
and its subsidiaries have filed all necessary federal, state and foreign income
and franchise tax returns and have paid all taxes required to be paid by any of
them and, if due and payable, any related or similar assessment, fine or penalty
levied against any of them to the extent shown to be due on such tax returns.
The Company has made adequate charges, accruals and reserves in the applicable
financial statements referred to in Section 1(A)(i) above in respect of all
federal, state and foreign income and franchise taxes for all periods as to
which the tax liability of the Company or any of its subsidiaries has not been
finally determined.
(s) Company Not an "Investment Company". The Company is not, and after
receipt of payment of the Common Shares will not be, an "investment company"
within the meaning of Investment Company Act of 1940, as amended.
(t) Insurance. Each of the Company and its subsidiaries are insured by
recognized, financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks as the Company deems
to be adequate. The Company has no reason to believe that it or any subsidiary
will not be able to (i) renew its existing insurance coverage as and when such
policies expire, (ii) obtain comparable coverage from similar institutions as
may be necessary or appropriate to conduct its business as now conducted and at
a cost that would not result in a Material Adverse Change, or (iii) maintain its
large deductible or self-insurance programs substantially as in effect
currently. The accrued liability for unpaid claims and associated expenses
reflected on the Company's balance sheet at July 31, 1998 pursuant to the
Company's self-insurance program reflects, to the Company's knowledge, its best
estimate of the full extent of the Company's losses for outstanding claims not
otherwise covered by insurance, including any unasserted
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claims which management of the Company believes are probable of assertion.
Neither the Company nor any subsidiary has been denied any excess loss which it
has sought or for which it has applied.
(u) No Price Stabilization or Manipulation. The Company has not taken and
will not take, directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation of the
price of the Common Stock to facilitate the sale or resale of the Common
Shares.
(v) Compliance with Environmental Laws. Except as would not, individually
or in the aggregate, result in a Material Adverse Change (i) to the best of
the Company's knowledge neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign law or regulation relating to
pollution or protection of human health or 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 emissions, discharges, releases or threatened releases
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum and petroleum products (collectively, "Materials of
Environmental Concern"), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern (collectively, "Environmental Laws"), which
violation includes, but is not limited to, noncompliance with any permits or
other governmental authorizations required for the operation of the business of
the Company or its subsidiaries under applicable Environmental Laws, or
noncompliance with the terms and conditions thereof, nor has the Company or any
of its subsidiaries received any written communication, whether from a
governmental authority, citizens group, employee or otherwise, that alleges
that the Company or any of its subsidiaries is in violation of any
Environmental Law; (ii) there is no claim, action or cause of action filed with
a court or governmental authority, no investigation with respect to which the
Company has received written notice, and no written notice by any person or
entity alleging potential liability for investigatory costs, cleanup costs,
governmental responses costs, natural resources damages, property damages,
personal injuries, attorneys' fees or penalties arising out of, based on or
resulting from the presence, or release into the environment, of any Material
of Environmental Concern at any location owned, leased or operated by the
Company or any of its subsidiaries, now or in the past (collectively,
"Environmental Claims"), pending or, to the best of the Company's knowledge,
threatened against the Company or any of its subsidiaries or any person or
entity whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation of
law, and (iii) to the best of the Company's knowledge, there are no past or
present actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge, presence or
disposal of any Material of Environmental Concern, that reasonably could result
in a violation of any Environmental Law or form the basis of a potential
Environmental Claim against the
-9-
14
Company or any of its subsidiaries or against any person or entity whose
liability for any Environmental Claim the Company or any of its subsidiaries has
retained or assumed either contractually or by operation of law.
(w) ERISA Compliance. The Company and its subsidiaries and any "employee
benefit plan" (as defined under the Employee Retirement Income Security Act of
1974, as amended, and the regulations and published interpretations thereunder
(collectively, "ERISA")) established or maintained by the Company, its
subsidiaries or their "ERISA Affiliates" (as defined below) are in compliance
in all material respects with ERISA, except where the failure to be in
compliance would not result in a Material Adverse Change. "ERISA Affiliate"
means, with respect to the Company or a subsidiary, any member of any group of
organizations described in Sections 414(b), (c), (m) or (o) of the Internal
Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the "Code") of which the Company or such subsidiary
is a member. No "reportable event" (as defined under ERISA) has occurred or is
reasonably expected to occur with respect to any "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates. No "employee benefit plan" established or maintained by the Company,
its subsidiaries or any of their ERISA Affiliates, if such "employee benefit
plan" were terminated, would have any "amount of unfunded benefit liabilities"
(as defined under ERISA). Neither the Company, its subsidiaries nor any of their
ERISA Affiliates has incurred or reasonably expects to incur any liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal from, any
"employee benefit plan" or (ii) Sections 412, 4971, 4975 or 4980B of the Code.
Each "employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates that is intended to be qualified
under Section 401(a) of the Code is so qualified and nothing has occurred,
whether by action or failure to act, which would cause the loss of such
qualification.
(x) Exchange Act Compliance. The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material respects
with the applicable requirements of the Exchange Act, and, when read together
with the other information in the Prospectus, at the time the Registration
Statement and any amendments thereto become effective and at the First Closing
Date and the Second Closing Date, as the case may be, 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 fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(y) Acquisitions of CCI and ITI. The agreements necessary to effect the
acquisitions of CCI and ITI have been duly authorized, executed and delivered by
each of the parties thereto and constitute the valid, legal and binding
agreements of
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15
each such party, and the acquisitions of CCI and ITI by the Company and the
related transactions contemplated thereby have been consummated as described in
the Prospectus.
Any certificate signed by an officer of the Company and delivered to the
Underwriters or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the
matters set forth therein.
B. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each Selling
Stockholder represents, warrants and covenants to each Underwriter as follows:
(a) The Underwriting Agreement. This Agreement has been duly authorized
executed and delivered by or on behalf of such Selling Stockholder and is a
valid and binding agreement of such Selling Stockholder, enforceable in
accordance with its terms, except as rights to indemnification hereunder may be
limited by applicable law and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles.
(b) The Custody Agreement and Power of Attorney. Each of the (i) Custody
Agreement signed by such Selling Stockholder and [▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇], as
custodian (the "Custodian"), relating to the deposit of the Common Shares to be
sold by such Selling Stockholder (the "Custodian Agreement") and (ii) Power of
Attorney appointing certain individuals named therein as such Selling
Stockholder's attorneys-in-fact (each, an "Attorney-in-Fact") to the extent set
forth therein relating to the transactions contemplated hereby and by the
Prospectus (the "Power of Attorney"), of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a valid
and binding agreement of such Selling Stockholder, enforceable in accordance
with its terms, except as rights to indemnification thereunder may be limited by
applicable law and except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles.
(c) Title to Common Shares to be Sold; All Authorizations Obtained. Such
Selling Stockholder has, and on the First Closing Date and the Second Closing
Date (as defined below) will have, good and valid title to all of the Common
Shares which may be sold by such Selling Stockholder pursuant to this Agreement
on such date and the legal right and power, and all authorizations and approvals
required by law and under its trust agreement or other organizational documents,
if any, to enter into this Agreement and its Custodian Agreement and Power of
Attorney, to sell, transfer and deliver all of the Common Shares which may be
sold by such Selling Stockholder pursuant to this Agreement and to comply with
its other obligations hereunder and thereunder
-11-
16
(d) Delivery of the Common Shares to be Sold. Upon delivery of the Common
Shares which are to be sold by such Selling Stockholder pursuant to this
Agreement and payment of the purchase price therefor as herein contemplated,
assuming each Underwriter has no notice of any adverse claim, the Underwriters
will receive good and valid title to such Common Shares, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or other claim.
(e) Non-Contravention; No Further Authorizations or Approvals Required. The
execution and delivery by such Selling Stockholder of, and the performance by
such Selling Stockholder of its obligations under, this Agreement, the Custodian
Agreement and the Power of Attorney will not contravene or conflict with, result
in a breach of, or constitute a Default under, or require the consent of any
other party to, the trust agreement or other organizational documents, if any,
of such Selling Stockholder or any other material agreement or instrument to
which such Selling Stockholder is a party or by which it is bound or under which
it is entitled to any right or benefit, any provision of applicable law or any
material judgment, order, decree or regulation applicable to such Selling
Stockholder of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over such Selling Stockholder. No
consent, approval, authorization or other order of, or registration or filing
with, any court or other governmental or regulatory authority or agency, is
required for the execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby and by the Prospectus by
such Selling Stockholder, except such as have been obtained or made by the
Selling Stockholder and are in full force and effect under the Securities Act
and such as may be required under applicable state securities or blue sky laws.
(f) No Registration or Other Similar Rights. Such Selling Stockholder does
not have any registration or other similar rights to have any equity or debt
securities registered for sale by the Company under the Registration Statement
or included in the offering contemplated by this Agreement, except for such
rights as are described in the Prospectus under "Risk Factors - Shares Eligible
for Future Sale" and except for such rights as have been exercised by the
Selling Stockholders in connection with this offering and whose Common Shares
have been included herein.
(g) No Further Consents, etc. No consent, approval or waiver is required
under any material instrument or agreement to which such Selling Stockholder is
a party or by which it is bound or under which it is entitled to any right or
benefit, in connection with the offering, sale or purchase by the Underwriters
of any of the Common Shares which may be sold by such Selling Stockholder under
this Agreement or the consummation by such Selling Stockholder of any of the
other transactions contemplated hereby.
-12-
17
(d) Delivery of the Common Shares to be Sold. Upon delivery of the Common
Shares which are to be sold by such Selling Stockholder pursuant to this
Agreement and payment of the purchase price therefor as herein contemplated,
assuming each Underwriter has no notice of any adverse claim, the Underwriters
will receive good and valid title to such Common Shares, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or other claim.
(e) Non-Contravention; No Further Authorizations or Approvals Required.
The execution and delivery by such Selling Stockholder of, and the performance
by such Selling Stockholder of its obligations under, this Agreement, the
Custodian Agreement and the Power of Attorney will not contravene or conflict
with, result in a breach of, or constitute a Default under, or require the
consent of any other party to, the trust agreement or other organizational
documents, if any, of such Selling Stockholder or any other material agreement
or instrument to which such Selling Stockholder is a party or by which it is
bound or under which it is entitled to any right or benefit, any provision of
applicable law or any material judgment, order, decree or regulation applicable
to such Selling Stockholder of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over such Selling
Stockholder. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or regulatory
authority or agency, is required for the execution, delivery and performance of
this Agreement and consummation of the transactions contemplated hereby and by
the Prospectus by such Selling Stockholder, except such as have been obtained
or made by the Selling Stockholder and are in full force and effect under the
Securities Act and such as may be required under applicable state securities or
blue sky laws.
(f) No Registration or Other Similar Rights. Such Selling Stockholder
does not have any registration or other similar rights to have any equity or
debt securities registered for sale by the Company under the Registration
Statement or included in the offering contemplated by this Agreement, except
for such rights as are described in the Prospectus under "Risk Factors--Shares
Eligible for Future Sale" and except for such rights as have been exercised by
the Selling Stockholders in connection with this offering and whose Common
Shares have been included herein.
(g) No Further Consents, etc. No consent, approval or waiver is required
under any material instrument or agreement to which such Selling Stockholder is
a party or by which it is bound or under which it is entitled to any right or
benefit, in connection with the offering, sale or purchase by the Underwriters
of any of the Common Shares which may be sold by such Selling Stockholder under
this Agreement or the consummation by such Selling Stockholder of any of the
other transactions contemplated hereby.
-12-
18
(h) Disclosure Made by Such Selling Stockholder in the Prospectus. All
information furnished by or on behalf of such Selling Stockholder in writing
expressly for use in the Registration Statement and Prospectus is, and on the
First Closing Date and the Second Closing Date will be, true, correct, and
complete in all material respects, and does not, and on the First Closing Date
and the Second Closing Date will not, contain any untrue statement of a material
fact or omit to state any material fact necessary to make such information not
misleading. Such Selling Stockholder confirms as accurate the number of shares
of Common Stock set forth opposite such Selling Stockholder's name in the
Prospectus under the caption "Principal and Selling Stockholders" (both prior to
and after giving effect to the sale of the Common Shares).
(i) No Price Stabilization or Manipulation. Such Selling Stockholder has
not taken and will not take, directly or indirectly, any action designed to or
that might be reasonably expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale or resale
of the Common Shares.
[(j) Confirmation of Company Representations and Warranties. The Certain
Selling Stockholder (as such term is defined on Schedule B hereto) has no
reason to believe that the representations and warranties of the Company
contained in Section 1(A) hereof are not true and correct, is familiar with the
Registration Statement and the Prospectus and has no knowledge of any material
fact, condition or information not disclosed in the Registration Statement or
the Prospectus which has had or may have a Material Adverse Effect and is not
prompted to sell shares of Common Stock by any information concerning the
Company which is not set forth in the Registration Statement and the
Prospectus.]
Any certificate signed by or on behalf of any Selling Stockholder and
delivered to the Underwriters or to counsel for the Underwriters shall be
deemed to be a representation and warranty by such Selling Stockholder to each
Underwriter as to the matters covered thereby.
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE COMMON SHARES.
(a) The Firm Common Shares. Upon the terms herein set forth, (i) the
Company agrees to issue and sell to the several Underwriters an aggregate of
1,500,000 Firm Common Shares and (ii) the Selling Stockholders agree to sell to
the several Underwriters an aggregate of 1,500,063 Firm Common Shares, each
Selling Stockholder selling the number of Firm Common Shares set forth opposite
such Selling Stockholder's name on Schedule B. On the basis of the
representations, warranties and agreements herein contained, and upon the terms
but subject to the conditions herein set forth, the Underwriters agree,
severally and not jointly, to purchase from the Company and the Selling
Stockholders the respective number of Firm Common Shares set forth opposite
their names on Schedule A. The purchase price per Firm Common Share to be paid
by
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19
the several Underwriters to the Company and the Selling Stockholders shall be
$ per share.
(b) The First Closing Date. Delivery of certificates for the Firm Common
Shares to be purchased by the Underwriters and payment therefor shall be made
at offices of NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or such other place as may be agreed to by the
Company and NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC, as the representative on
behalf of the Underwriters (the "Representative")) at 6:00 a.m. San Francisco
time, on , 1998, or such other time and date not later than 10:30 a.m. San
Francisco time, on ,1998 as the Representative shall designate by notice to
the Company (the time and date of such closing are called the "First Closing
Date"). The Company and the Selling Stockholders hereby acknowledge that
circumstances under which the Underwriters may provide notice to postpone the
First Closing Date as originally scheduled include, but are in no way limited
to, any determination by the Company, the Selling Stockholders or the
Underwriters to recirculate to the public copies of an amended or supplemented
Prospectus or a delay as contemplated by the provisions of Section 10.
(c) The Optional Common Shares; the Second Closing Date. In addition, on
the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the Company
and one of the Selling Stockholders, as indicated on Schedule B hereto, hereby
grant an option to the several Underwriters to purchase, severally and not
jointly, up to an aggregate of 350,009 Optional Common Shares from the Company
and 100,000 Optional Common Shares from such Selling Stockholder at the
purchase price per share to be paid by the Underwriters for the Firm Common
Shares. The option granted hereunder is for use by the Underwriters solely in
covering any over-allotments in connection with the sale and distribution of
the Firm Common Shares. The option granted hereunder may be exercised at any
time (but not more than once) upon notice by the Underwriters to the Company
and such Selling Stockholder,which notice may be given at any time within 30
days from the date of this Agreement. Such notice shall set forth (i) the
aggregate number of Optional Common Shares as to which the Underwriters are
exercising the option, (ii) the names and denominations in which the
certificates for the Optional Common Shares are to be registered and (iii) the
time, date and place at which such certificates will be delivered (which time
and date may be simultaneous with, but not earlier than, the First Closing
Date; and in such case the term "First Closing Date" shall refer to the time
and date of delivery of certificates for the Firm Common Shares and the
Optional Common Shares). Such time and date of delivery, if subsequent to the
First Closing Date, is called the "Second Closing Date" and shall be determined
by the Underwriters and shall not be earlier than three nor later than five
full business days after delivery of such notice of exercise. If any Optional
Common Shares are to be purchased, (a) each Underwriter agrees, severally and
not jointly, to purchase the number of Optional Common Shares (subject to such
adjustments to eliminate fractional shares as the Underwriters may determine)
that bears the same proportion to the total number of
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20
Optional Common Shares to be purchased as the number of Firm Common Shares set
forth on Schedule A opposite the name of such Underwriter bears to the total
number of Firm Common Shares and (b) the Company and such Selling Stockholder
each agree, severally and not jointly, to sell the number of Optional Common
Shares (subject to such adjustments to eliminate fractional shares as the
Representative may determine) that bears the same proportion to the total
number of Optional Common Shares to be sold as the number of Optional Common
Shares to be sold by the Company as set forth in the paragraph "Introductory"
of this Agreement (and, in the case of such Selling Stockholder, as the number
of Optional Common Shares set forth on Schedule B opposite such Selling
Stockholder's name) bears to the total number of Optional Common Shares. The
Underwriters may cancel the option at any time prior to its expiration by
giving written notice of such cancellation to the Company and such Selling
Stockholder.
(d) Public Offering of the Common Shares. The Underwriters hereby advise
the Company and the Selling Stockholders that the Underwriters intend to offer
for sale to the public, as described in the Prospectus, their respective
portions of the Common Shares as soon after this Agreement has been executed
and the Registration Statement has been declared effective as the Underwriters,
in their sole judgment, have determined is advisable and practicable.
(c) Payment for the Common Shares. Payment for the Common Shares to be
sold by the Company shall be made at the First Closing Date (and, if
applicable, at the Second Closing Date) by wire transfer of immediately
available funds to the order of the Company. Payment for the Common Shares to
be sold by the Selling Stockholders (and, if applicable, to the Selling
Stockholder indicated on Schedule B hereto, at the Second Closing Date) shall
be made at the First Closing Date (and, if applicable, at the Second Closing
Date) by wire transfer of immediately available funds to the order of the
Custodian.
It is understood that the Underwriters have been authorized, for their own
account and the accounts of the several Underwriters, to accept delivery of and
receipt for, and make payment of the purchase price for, the Firm Common Shares
and any Optional Common Shares the Underwriters have agreed to purchase
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC individually and not as the Representative
of the Underwriters, may (but shall not be obligated to) make payment for any
Common Shares to be purchased by an Underwriter whose funds shall not have been
received by the First Closing Date or the Second Closing Date, as the case may
be, for the account of such Underwriter, but any such payment shall not relieve
such Underwriter from any of its obligations under this Agreement.
Each Selling Stockholder hereby agrees that (i) it will pay all stock
transfer taxes, stamp duties and other similar taxes, if any, payable upon the
sale or delivery of the Common Shares to be sold by such Selling Stockholder to
the several Underwriters, or otherwise in connection with the performance of
such Selling
-15-
21
Stockholder's obligations hereunder and (ii) the Custodian is authorized to
deduct for such payment any such amounts from the proceeds to such Selling
Stockholder hereunder and to hold such amounts for the account of such Selling
Stockholder with the Custodian under the Custodian Agreement.
(f) Delivery of the Common Shares. The Company and the Selling Stockholders
shall deliver, or cause to be delivered, to the Underwriters for the accounts of
the several Underwriters certificates for the Firm Common Shares to be sold by
them at the First Closing Date, against the irrevocable release of a wire
transfer of immediately available funds for the amount of the purchase price
therefor. The Company and the Selling Stockholder indicated on Schedule B hereto
shall also deliver, or cause to be delivered, to the Underwriters for the
accounts of the several Underwriters, certificates for the Optional Common
Shares the Underwriters have agreed to purchase from it at the First Closing
Date or the Second Closing Date, as the case may be, against the irrevocable
release of a wire transfer of immediately available funds for the amount of the
purchase price therefor. The certificates for the Common Shares shall be in
definitive form and registered in such names and denominations as the
Underwriters shall have requested at least two full business days prior to the
First Closing Date (or the Second Closing Date, as the case may be) and shall be
made available for inspection on the business day preceding the First Closing
Date (or the Second Closing Date, as the case may be) at a location in New York
City as the Underwriters may designate. Time shall be of the essence, and
delivery at the time and place specified in this Agreement is a further
condition to the obligations of the Underwriters.
(g) Delivery of Prospectus to the Underwriters. Not later than 12:00 p.m.
on the second business day following the date the Common Shares are released by
the Underwriters for sale to the public, the Company shall deliver or cause to
be delivered copies of the Prospectus in such quantities and at such places as
the Underwriters shall reasonably request.
SECTION 3. ADDITIONAL COVENANTS.
A. COVENANTS OF THE COMPANY. The Company further covenants and agrees with
each Underwriter as follows:
(a) Underwriters' Review of Proposed Amendments and Supplements. During
such period beginning on the date hereof and ending on the later of the First
Closing Date or such date, as in the opinion of counsel for the Underwriters,
the Prospectus is no longer required by law to be delivered in connection with
sales by an Underwriter or dealer (the "Prospectus Delivery Period"), prior to
amending or supplementing the Registration Statement (including any
registration statement filed under Rule 462(b) under the Securities Act) or the
Prospectus (including any amendment or supplement through incorporation by
reference of any report filed under the Exchange Act, the Company shall furnish
to the Underwriters for review a
-16-
22
copy of each such proposed amendment or supplement, and the Company shall not
file any such proposed amendment or supplement to which the Underwriters
reasonably object.
(b) Securities Act Compliance. After the date of this Agreement, the
Company shall promptly advise the Underwriters in writing (i) of the receipt of
any comments of, or requests for additional or supplemental information from,
the Commission, (ii) of the time and date of any filing of any post-effective
amendment to the Registration Statement or any amendment or supplement to any
preliminary prospectus or the Prospectus, (iii) of the time and date that any
post-effective amendment to the Registration Statement becomes effective and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereto or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, or of any proceedings to remove, suspend or
terminate from listing or quotation the Common Stock from any securities
exchange upon which it is listed for trading or included or designated for
quotation, or of the threatening or initiation of any proceedings for any of
such purposes. If the Commission shall enter any such stop order at any time,
the Company will use its best efforts to obtain the lifting of such order at
the earliest possible moment. Additionally, the Company agrees that it shall
comply with the provisions of Rules 424(b), 430A and 434, as applicable, under
the Securities Act and will use its reasonable efforts to confirm that any
filings made by the Company under such Rule 424(b) were received in a timely
manner by the Commission.
(c) Amendments and Supplements to the Prospectus and Other Securities Act
Matters. If, during the Prospectus Delivery Period, any event shall occur or
conditions exist as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if in the opinion of counsel for the Underwriters it is otherwise necessary
to amend or supplement the Prospectus to comply with law, the Company agrees to
promptly prepare (subject to Section 3(A)(a) hereof), file with the Commission
and furnish at its own expense to the Underwriters and to dealers, amendments
or supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) Copies of any Amendments and Supplements to the Prospectus. The
Company agrees to furnish the Underwriters, without charge, during the
Prospectus Delivery Period, as many copies of the Prospectus and any amendments
and supplements thereto (including any documents incorporated or deemed
incorporated by reference therein) as the Underwriters may reasonably request.
-17-
23
(e) Blue Sky Compliance. The Company shall cooperate with the Underwriters
and counsel for the Underwriters to qualify or register the Common Shares for
sale under (or obtain exemptions from the application of) the Blue Sky or state
securities laws of those jurisdictions designated by the Underwriters, shall
comply with such laws and shall continue such qualifications, registrations and
exemptions in effect so long as required for the distribution of the Common
Shares. The Company shall not be required to qualify as a foreign corporation
or to take any action that would subject it to general service of process in
any such jurisdiction where it is not presently qualified or where it would be
subject to taxation as a foreign corporation. The Company will advise the
Underwriters promptly of the suspension of the qualification or registration of
(or any such exemption relating to) the Common Shares for offering, sale or
trading in any jurisdiction or any initiation or threat of any proceeding for
any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use reasonable
efforts to obtain the withdrawal thereof at the earliest possible moment.
(f) Use of Proceeds. The Company shall apply the net proceeds from the
sale of the Common Shares sold by it in the manner described under the caption
"Use of Proceeds" in the Prospectus.
(g) Transfer Agent. The Company shall engage and maintain, at its expense,
a registrar and transfer agent for the Common Stock.
(h) Periodic Reporting Obligations. During the Prospectus Delivery Period
the Company shall file, on a timely basis, with the Commission and the New York
Stock Exchange all reports and documents required to be filed under the
Exchange Act.
(i) Agreement Not To Offer or Sell Additional Securities. During the
period of 90 days following the date of the Prospectus, the Company will not,
without the prior written consent of NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
(which consent may be withheld at the sole discretion of NationsBanc ▇▇▇▇▇▇▇▇▇▇
Securities LLC), directly or indirectly, sell, offer, contract or grant any
option to sell, pledge, transfer or establish an open "put equivalent position"
within the meaning of Rule 16a-l(h) under the Exchange Act, or otherwise
dispose of or transfer, or announce the offering of, or file any registration
statement under the Securities Act in respect of, any shares of Common Stock,
options or warrants to acquire shares of the Common Stock or securities
exchangeable or exercisable for or convertible into shares of Common Stock
(other than as contemplated by this Agreement with respect to the Common
Shares); provided, however, that the Company may issue shares of its Common
Stock pursuant to acquisitions of companies in the telecommunications and
utilities engineering, construction and maintenance services industry and may
issue shares of its Common Stock or options to purchase its Common Stock, or
Common Stock upon
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exercise of options, pursuant to any stock option, stock bonus or other stock
plan or arrangement described in the Prospectus.
(j) Future Reports to the Underwriters. During the period of one year
hereafter the Company will furnish to NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
and, upon request, to each of the Underwriters at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (i) as soon as practicable after
the end of each fiscal year, copies of the Annual Report of the Company
containing the balance sheet of the Company as of the close of such fiscal year
and statements of income, stockholders' equity and cash flows for the year then
ended and the opinion thereon of the Company's independent public or certified
public accountants; (ii) as soon as practicable after the filing thereof,
copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on
Form 10-Q, Current Report on Form 8-K, or other report filed by the Company
with the Commission, the NASD or any securities exchange, and (iii) as soon as
available, copies of any report or communication of the Company mailed
generally to holders of its capital stock.
B. COVENANTS OF THE SELLING STOCKHOLDERS. Each Selling Stockholder further
covenants and agrees with each Underwriter
(a) Agreement Not to Offer or Sell Additional Securities. Such Selling
Stockholder will not, without the prior written consent of NationsBanc
▇▇▇▇▇▇▇▇▇▇ Securities LLC (which consent may be withheld in its sole
discretion), directly or indirectly, sell, offer, contract or grant any option
to sell (including without limitation any short sale), pledge, transfer,
establish an open "put equivalent position" within the meaning of Rule
16a-l(h) under the Exchange Act, or otherwise dispose of any shares of Common
Stock, options or warrants to acquire shares of Common Stock, or securities
exchangeable or exercisable for or convertible into shares of Common Stock
currently or hereafter owned either of record or beneficially (as defined in
Rule 13d-3 under the Exchange Act) by the undersigned, or publicly announce
the undersigned's intention to do any of the foregoing, for a period commencing
on the date hereof and continuing through the close of trading on the date 90
days after the date of the Prospectus, provided that a Selling Stockholder may
give or pledge shares of Common Stock if the donee or pledgee agrees in
writing, prior to the making of such gift or pledge, to not sell, offer,
dispose of or otherwise transfer any gifted or pledged shares during said
90-day period without the prior written consent of NationsBanc ▇▇▇▇▇▇▇▇▇▇
Securities LLC (which consent may be withheld at the sole discretion of
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC)
(b) Delivery of Forms W-8 and W-9. To deliver to the Underwriters prior to
the First Closing Date a properly completed and executed United States Treasury
Department Form W-8 (if the Selling Stockholder is a non-United States person)
or Form W-9 (if the Selling Stockholder is a United States Person)
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NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC, on behalf of the several
Underwriters, may, in its sole discretion, waive in writing the performance by
the Company or any Selling Stockholder of any one or more of the foregoing
covenants or extend the time for their performance.
SECTION 4. PAYMENT OF EXPENSES. The Company agrees to pay all costs,
fees and expenses incurred in connection with the performance of its
obligations hereunder and in connection with the transactions contemplated
hereby, including without limitation (i) all expenses incident to the issuance
and delivery of the Common Shares (including all printing and engraving costs),
(ii) all fees and expenses of the registrar and transfer agent of the Common
Stock, (iii) all necessary issue, transfer and other stamp taxes in connection
with the issuance and sale of the Common Shares to the Underwriters, (iv) all
fees and expenses of the Company's counsel, independent public or certified
public accountants and other advisors, (v) all costs and expenses incurred in
connection with the printing, filing, shipping and distribution of the
Registration Statement (including financial statements, exhibits, schedules,
consents and certificates of experts), each preliminary prospectus and the
Prospectus, and all amendments and supplements thereto, and this Agreement,
(vi) all filing fees, attorneys' fees and expenses incurred by the Company or
the Underwriters in connection with qualifying or registering (or obtaining
exemptions from the qualification or registration of) all or any part of the
Common Shares for offer and sale under the Blue Sky laws, and, if requested by
the Underwriters, preparing and printing a "Blue Sky Survey" or memorandum, and
any supplements thereto, advising the Underwriters of such qualifications,
registrations and exemptions, (vii) the filing fees incident to, and the
reasonable fees and expenses of counsel for the Underwriters in connection
with, the NASD's review and approval of the Underwriters' participation in the
offering and distribution of the Common Shares, (viii) the fees and expenses
associated with listing the Common Shares on the New York Stock Exchange, Inc.,
and (ix) all other fees, costs and expenses referred to in Part II of the
Registration Statement. Except as provided in this Section 4, Section 6,
Section 8 and Section 9 hereof, the Underwriters shall pay their own expenses,
including the fees and disbursements of their counsel.
The Selling Stockholders further agree with each Underwriter to pay
(directly or by reimbursement) all fees and expenses incident to the
performance of their obligations under this Agreement which are not otherwise
specifically provided for herein, including but not limited to (i) fees and
expenses of counsel and other advisors for such Selling Stockholders (ii) fees
and expenses of the Custodian and (iii) expenses and taxes incident to the sale
and delivery of the Common Shares to be sold by such Selling Stockholders to
the Underwriters hereunder (which taxes, if any, may be deducted by the
Custodian under the provisions of Section 2 of this Agreement).
This Section 4 shall not affect or modify any separate, valid agreement
relating to the allocation of payment of expenses between the Company, on the
one hand, and the Selling Stockholders, on the other hand.
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SECTION 5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters to purchase and pay for the Common
Shares as provided herein on the First Closing Date and, with respect to the
Optional Common Shares, the Second Closing Date, shall be subject to the
accuracy of the representations and warranties on the part of the Company and
the Selling Stockholders set forth in Sections 1(A) and 1(B) hereof as of the
date hereof and as of the First Closing Date as though then made and, with
respect to the Optional Common Shares, as of the Second Closing Date as though
then made, to the timely performance by the Company and the Selling
Stockholders of their respective covenants and other obligations hereunder, and
to each of the following additional conditions.
(a) Accountants' Comfort Letter. On the date hereof, the Underwriters
shall have received from each of Deloitte & Touche LLP, independent public
or certified public accountants for the Company and ▇▇▇▇▇▇ & Associates,
independent public or certified public accountants for CCG, a letter dated
the date hereof addressed to the Underwriters, in form and substance
satisfactory to the Underwriters, containing statements and information of
the type ordinarily included in accountant's "comfort letters" to
underwriters, delivered according to Statement of Auditing Standards No. 72
(or any successor bulletin), with respect to the audited and unaudited
financial statements and certain financial information contained in the
Registration Statement and the Prospectus (and the Underwriters shall have
received an additional five conformed copies of such accountants' letter for
each of the several Underwriters).
(b) Compliance with Registration Requirements; No Stop Order; No
Objection from NASD. For the period from and after effectiveness of this
Agreement and prior to the First Closing Date and, with respect to the
Optional Common Shares, the Second Closing Date.
(i) the Company shall have filed the Prospectus with the Commission
(including the information required by Rule 430A under the Securities
Act) in the manner and within the time period required by Rule 424(b)
under the Securities Act, or the Company shall have filed a
post-effective amendment to the Registration Statement containing the
information required by such Rule 430A, and such post-effective
amendment shall have become effective; or, if the Company elected to
rely upon Rule 434 under the Securities Act and obtained the
Underwriters' consent thereto, the Company shall have filed a Term
Sheet with the Commission in the manner and within the time period
required by such Rule 424(b).
(ii) no stop order suspending the effectiveness of the Registration
Statement, any Rule 462(b) Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in
effect and no
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proceedings for such purpose shall have been instituted or threatened by
the Commission; and
(iii) the NASD shall have raised no objection to the fairness
and reasonableness of the underwriting terms and arrangements.
(c) No Material Adverse Change or Ratings Agency Change. For the
period from and after the date of this Agreement and prior to the First
Closing Date and, with respect to the Optional Common Shares, the Second
Closing Date:
(i) in the judgment of the Underwriters there shall not have
occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any securities of the Company or
any of its subsidiaries by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act.
(d) Opinion of Counsel for the Company. On each of the First Closing
Date and the Second Closing Date the Underwriters shall have received the
favorable opinion of Shearman & Sterling, New York counsel for the Company, and
Akerman, Senterfitt & ▇▇▇▇▇▇, Florida counsel for the Company, dated as of such
Closing Date, the form of which is attached as Exhibit A (and the Underwriters
shall have received an additional five conformed copies of such counsel's legal
opinion for each of the several Underwriters).
(e) Opinion of Counsel for the Underwriters. On each of the First
Closing Date and the Second Closing Date the Underwriters shall have received
the favorable opinion of Piper & Marbury L.L.P., counsel for the Underwriters,
dated as of such Closing Date, with respect to the matters set forth in
paragraphs (i), (vi), (vii), (viii), (x), (xi), and the next-to-last paragraph
of Exhibit A (and the Underwriters shall have received an additional five
conformed copies of such counsel's legal opinion for each of the several
Underwriters).
(f) Officers' Certificate. On each of the First Closing Date and the
Second Closing Date, the Underwriters shall have received a written certificate
executed by the Chairman of the Board, Chief Executive Officer or President of
the Company and the Chief Financial Officer or Chief Accounting Officer of the
Company, dated as of such Closing Date, to the effect set forth in subsections
(b)(ii) and (c)(ii) of this Section 5, and further to the effect that:
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(i) for the period from and after the date of this Agreement
and prior to such Closing Date, there has not occurred any Material Adverse
Change;
(ii) the representations and warranties of the Company set forth
in Section 1(A) of this Agreement are true and correct with the same force
and effect as though expressly made on and as of such Closing Date; and
(iii) the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to such Closing Date.
(g) Bring-down Comfort Letter. On each of the First Closing Date and
the Second Closing Date the Underwriters shall have received from each of
Deloitte & Touche LLP, independent public or certified public accountants for
the Company and ▇▇▇▇▇▇ & Associates, independent public or certified public
accountants for CCG, a letter dated such date, in form and substance
satisfactory to the Underwriters, to the effect that they reaffirm the
statements made in the letter furnished by them pursuant to subsection (a) of
this Section 5, except that the specified date referred to therein for the
carrying out of procedures shall be no more than three business days prior to
the First Closing Date or Second Closing Date, as the case may be (and the
Underwriters shall have received an additional five conformed copies of such
accountants' letter for each of the several Underwriters).
(h) Opinion of Counsel for the Selling Stockholders. On each of the
First Closing Date and the Second Closing Date the Underwriters shall have
received the favorable opinion of Shearman & Sterling, ▇▇▇▇▇▇ & ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Selling
Stockholders, as applicable, dated as of such Closing Date, the form of which
is attached as Exhibit B (and the Underwriters shall have received an
additional five conformed copies of such counsel's legal opinion for each of
the several Underwriters).
(i) Selling Stockholders' Certificate. On each of the First Closing
Date and the Second Closing Date the Underwriters shall have received a written
certificate executed by each Selling Stockholder, dated as of such Closing
Date, to the effect that:
(i) the representations, warranties and covenants of such
Selling Stockholder set forth in Section 1(B) of this Agreement are true
and correct with the same force and effect as though expressly made by such
Selling Stockholder on and as of such Closing Date; and
(ii) such Selling Stockholder has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date.
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(j) Selling Stockholders' Documents. On the date hereof, the Company
and the Selling Stockholders shall have furnished for review by the Underwriters
copies of the Powers of Attorney and Custodian Agreements executed by each of
the Selling Stockholders and such further information, certificates and
documents as the Underwriters may reasonably request.
(k) Lock-Up Agreement from Certain Stockholders of the Company Other
Than Selling Stockholders. On the date hereof, the Company shall have furnished
to the Underwriters an agreement in the form of Exhibit C hereto from each
director and each officer of the Company that is not a Selling Stockholder
(other than ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇), and such agreement shall be in full force and
effect on each of the First Closing Date and the Second Closing Date.
(l) Additional Documents. On or before each of the First Closing Date
and the Second Closing Date, the Underwriters and counsel for the Underwriters
shall have received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the issuance
and sale of the Common Shares as contemplated herein, or in order to evidence
the accuracy of any of the representations and warranties, or the satisfaction
of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the Underwriters
by notice to the Company and the Selling Stockholders at any time on or prior
to the First Closing Date and, with respect to the Optional Common Shares, at
any time prior to the Second Closing Date, which termination shall be without
liability on the part of any party to any other party, except that Section 4,
Section 6, Section 8 and Section 9 shall at all times be effective and shall
survive such termination.
SECTION 6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If this Agreement
is terminated by the Underwriters pursuant to Section 5, by the Company
pursuant to Section 7, or Section 11 or Section 17, or if the sale to the
Underwriters of the Common Shares on the First Closing Date is not consummated
because of any refusal, inability or failure on the part of the Company or the
Selling Stockholders to perform any agreement herein or to comply with any
provision hereof, the Company agrees to reimburse the Underwriters (or such
Underwriters as have terminated this Agreement with respect to themselves),
severally, upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by the Underwriters in connection with the proposed
purchase and the offering and sale of the Common Shares, including but not
limited to fees and disbursements of counsel, printing expenses, travel
expenses, postage, facsimile and telephone charges.
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SECTION 7. EFFECTIVENESS OF THIS AGREEMENT.
This Agreement shall not become effective until the later of (i) the
execution of this Agreement by the parties hereto and (ii) notification by the
Commission to the Company and the Underwriters of the effectiveness of the
Registration Statement under the Securities Act.
Prior to such effectiveness, this Agreement may be terminated by any
party by notice to each of the other parties hereto, and any such termination
shall be without liability on the part of (a) the Company or the Selling
Stockholders to any Underwriter, except that the Company and the Selling
Stockholders shall be obligated to reimburse the expenses of the Underwriters
pursuant to Section 4 and 6 hereof, (b) of any Underwriter to the Company or
the Selling Stockholders, or (c) of any party hereto to any other party except
that the provisions of Section 8 and Section 9 shall at all times be effective
and shall survive such termination.
SECTION 8. INDEMNIFICATION.
(a) Indemnification of the Underwriters. Each of the Company and,
subject to the last sentence of this Section 8(a), each Selling Stockholder,
severally and not jointly, agrees to indemnify and hold harmless each
Underwriter, its officers and employees, and each person, if any, who controls
any Underwriter within the meaning of the Securities Act and the Exchange Act
against any loss, claim, damage, liability or expense, as incurred, to which
such Underwriter or such controlling person may become subject, under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Company), insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is based (i) upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereto, including any information
deemed to be a part thereof pursuant to Rule 430A or Rule 434 under the
Securities Act, 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 (ii) upon any untrue statement or alleged untrue statement of a
material fact contained 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, and to
reimburse each Underwriter and each such controlling person for any and all
reasonable expenses (including the fees and disbursements of counsel chosen by
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC) as such expenses are reasonably incurred
by such Underwriter or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the foregoing indemnity
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agreement shall not apply to any loss, claim, damage, liability or expense
to the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to the
Company by the Underwriters expressly for use in the Registration Statement,
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), and provided, further, that with respect to any preliminary
prospectus, the foregoing indemnity agreement shall not inure to the benefit of
any Underwriter from whom the person asserting any loss, claim, damage,
liability or expense purchased Common Shares, or any person controlling such
Underwriter, if copies of the Prospectus were timely delivered to the
Underwriter pursuant to Section 2 and a copy of the Prospectus (as then amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to
the written confirmation of the sale of the Common Shares to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage, liability or expense. In addition,
with respect to each Selling Stockholder, this indemnity agreement shall apply
only to any loss, claim, damage, liability 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 information furnished to the
Company by such Selling Stockholder expressly for use in the Registration
Statement or any amendment thereto, any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) The Company acknowledges
that the only information provided by each Selling Stockholder for use in the
Registration Statement, any amendment thereto, any preliminary prospectus or
the Prospectus includes the name and address of such Selling Stockholder and
the number of Common Shares owned by such Selling Stockholder. The indemnity
agreement set forth in this Section 8(a) shall be in addition to any
liabilities that the Company and the Selling Stockholders may otherwise have.
Each Selling Stockholder's aggregate liability under this Section 8 shall be
limited to an amount equal to the net proceeds received by such Selling
Stockholder from the sale of his or its Common Shares pursuant to this Agreement
(b) Indemnification of the Company, its Directors and Officers and
Selling Stockholders. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, the Selling Stockholders and
each person, if any, who controls the Company or any Selling Stockholder within
the meaning of the Securities Act or the Exchange Act, against any loss, claim,
damage, liability or expense, as incurred, to which the Company, or any such
director, officer, Selling Stockholder or controlling person may become
subject, under the Securities Act, the Exchange Act, or other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Underwriter), insofar as such loss, claim, damage,
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liability or expense (or actions in respect thereof as contemplated below)
arises out of or is based upon any untrue or alleged untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
arises out of or is based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any preliminary
prospectus, the Prospectus (or any amendment or supplement thereto), in
reliance upon and in conformity with written information furnished to the
Company and the Selling Stockholders by the Underwriters expressly for use
therein; and to reimburse the Company, or any such director, officer, Selling
Stockholder or controlling person for any legal and other expense reasonably
incurred by the Company, or any such director, officer, Selling Stockholder or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action. Each of the Company and each Selling Stockholder, hereby acknowledges
that the only information that the Underwriters have furnished to the Company
and the Selling Stockholders expressly for use in the Registration Statement,
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) are the statements set forth (A) as the last two paragraphs on the
inside front cover page of the Prospectus concerning stabilization by the
Underwriters and (B) in the table in the first paragraph and as the second and
seventh paragraphs under the caption "Underwriting" in the Prospectus; and the
Underwriters confirm that such statements are correct. The indemnity agreement
set forth in this Section 8(b) shall be in addition to any liabilities that
each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party for contribution or otherwise than under
the indemnity agreement contained in this Section 8 or to the extent it is not
prejudiced as a proximate result of such failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a
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conflict may arise between the positions of the indemnifying party and the
indemnified party in conducting the defense of any such action or that there may
be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with local counsel solely relating to
matters of local law), approved by the indemnifying party (NationsBanc
▇▇▇▇▇▇▇▇▇▇ Securities LLC on behalf of the several Underwriters in the case of
Section 8(b) and Section 9), representing the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action, in each of
which cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall not be
liable for any settlement of any proceeding effected without its prior written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by Section
8(c) hereof, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
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SECTION 9. CONTRIBUTION
If the indemnification provided for in Section 8 is for any reason held to
be unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount paid or payable by such indemnified party, as incurred, as a
result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders, on the one hand,
and the Underwriters, on the other hand, from the offering of the Common Shares
pursuant to this Agreement or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Selling Stockholders, on the one
hand, and the Underwriters, on the other hand, in connection with the
statements or omissions or inaccuracies in the representations and warranties
herein which resulted in such losses, claims, damages, liabilities or expenses,
as well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the Common
Shares pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Common Shares
pursuant to this Agreement (before deducting expenses) received by the Company
and the Selling Stockholders, and the total underwriting discount received by
the Underwriters, in each case as set forth on the front cover page of the
Prospectus (or, if Rule 434 under the Securities Act is used, the corresponding
location on the Term Sheet) bear to the aggregate initial public offering price
of the Common Shares as set forth on such cover. The relative fault of the
Company and the Selling Stockholders, on the one hand, and the Underwriters, 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 or any such inaccurate or
alleged inaccurate representation or warranty relates to information supplied
by the Company or the Selling Stockholders, on the one hand, or the
Underwriters, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 8(c), any legal or other fees
or expenses reasonably incurred by such party in connection with investigating
or defending any action or claim. The provisions set forth in Section 8(c) with
respect to notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 9; provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under Section 8(c) for purposes of indemnification.
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The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the underwriting commissions
received by such Underwriter in connection with the Common Shares underwritten
by it and distributed to the public. Notwithstanding the provisions of this
Section 9, each Selling Stockholder shall not be required to contribute any
amount in excess of the net proceeds received by such Selling Stockholder from
the sale of the Common Shares by such Selling Stockholder hereunder. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 9 are several, and not joint, in
proportion to their respective underwriting commitments as set forth opposite
their names in Schedule A. For purposes of this Section 9, each officer and
employee of an Underwriter and each person, if any, who controls an Underwriter
within the meaning of the Securities Act and the Exchange Act shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company or any Selling Stockholder with
the meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as the Company or such Selling Stockholder, as the case
may be.
The provisions of this Section 9 shall not affect any agreement between the
Company and the Selling Stockholders with respect to contribution.
SECTION 10. DEFAULT OF ONE OR MORE OF THE SEVERAL UNDERWRITERS. If, on the
First Closing Date or the Second Closing Date, as the case may be, any one or
more of the several Underwriters shall fail or refuse to purchase Common Shares
that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of the
aggregate number of the Common Shares to be purchased on such date, the other
Underwriters shall be obligated, severally, in the proportions that the number
of Firm Common Shares set forth opposite their respective names on Schedule A
bears to the aggregate number of Firm Common Shares set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as may be
specified by the Underwriters with the consent of the non-defaulting
Underwriters, to purchase the Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the
First Closing Date or the Second Closing Date, as the case may be, any one or
more of the Underwriters shall fail or refuse to purchase Common Shares and the
aggregate number
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of Common Shares with respect to which such default occurs exceeds 10% of the
aggregate number of Common Shares to be purchased on such date, and arrangements
satisfactory to the Underwriters and the Company for the purchase of such Common
Shares are not made within 48 hours after such default, this Agreement shall
terminate without liability of any party to any other party except that the
provisions of Section 4, Section 8 and Section 9 shall at all times be effective
and shall survive such termination. In any such case either the Underwriters or
the Company shall have the right to postpone the First Closing Date or the
Second Closing Date, as the case may be, but in no event for longer than seven
days in order that the required changes, if any, to the Registration Statement
and the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term "Underwriter" shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
10. Any action taken under this Section 10 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
SECTION 11. TERMINATION OF THIS AGREEMENT. Prior to the First Closing Date
this Agreement may be terminated by the Underwriters by notice given to the
Company and the Selling Stockholders if at any time (i) trading or quotation in
any of the Company's securities shall have been suspended or limited by the
Commission or by the New York Stock Exchange, or trading in securities generally
on either the Nasdaq Stock Market or the New York Stock Exchange shall have been
suspended or limited, or minimum or maximum prices shall have been generally
established on any of such stock exchanges by the Commission or the NASD; (ii) a
general banking moratorium shall have been declared by any of federal, Florida,
New York or California authorities; (iii) there shall have occurred any outbreak
or escalation of national or international hostilities or any crisis or
calamity, or any change in the United States or international financial markets,
or any substantial change or development involving a prospective substantial
change in united States' or international political, financial or economic
conditions, as in the judgment of the Underwriters is material and adverse and
makes it impracticable to market the Common Shares in the manner and on the
terms described in the Prospectus or to enforce contracts the sale of
securities; (iv) in the judgment of the Underwriters there shall have occurred
any Material Adverse Change; or (v) the Company shall have sustained a loss by
strike, fire, flood, earthquake, accident or other calamity of such character as
in the judgment of the Underwriters may interfere materially with the conduct of
the business and operations of the Company regardless of whether or not such
loss shall have been insured. Any termination pursuant to this Section 11 shall
be without liability on the part of (a) the Company or the Selling Stockholders
to any Underwriter, except that the Company and the Selling Stockholders shall
be obligated to reimburse the expenses of the Underwriters pursuant to Sections
4 and 6 hereof, (b) any Underwriter to the Company or the Selling Stockholders,
or (c) of any party hereto to any other party except that the provisions of
Section 8 and Section 9 shall at all times be effective and shall survive such
termination.
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Section 12. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of tis officers, of the Selling Stockholders and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of its or their partners,
officers or directors or any controlling person, or the Selling Stockholders,
as the case may be, and will survive delivery of and payment for the Common
Shares sold hereunder and any termination of this Agreement.
Section 13. Notices. All communications hereunder shall be in writing and
shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Underwriters
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile ▇▇▇-▇▇▇-▇▇▇▇
Attention ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Attention ▇▇▇▇▇ ▇ ▇▇▇▇▇▇, Esq.
If to the Company:
Dycom Industries, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Attention ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the Board and Chief
Executive Officer
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with a copy to
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Attention ▇▇▇▇ ▇▇▇▇▇▇, Esquire
If to Selling Stockholders
To such Selling Stockholder at the address specified on Schedule B hereof.
with a copy to
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Attention ▇▇▇▇ ▇▇▇▇▇▇, Esquire
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
Section 14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto, including any substitute Underwriters
pursuant to Section 10 hereof, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 8 and Section 9, and in
each case their respective successors, and personal representatives, and no
other person will have any right or obligation hereunder. The term "successors"
shall not include any purchaser of the Common Shares as such from any of the
Underwriters merely by reason of such purchase.
Section 15. Partial unenforceability. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other Section, paragraph or
provision hereof. If any, Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be
deemed to be made such minor changes (and only such minor changes) as are
necessary to make it valid and enforceable.
Section 16. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
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39
SECTION 17. FAILURE OF ONE OR MORE OF THE SELLING STOCKHOLDERS TO SELL AND
DELIVER COMMON SHARES. If one or more of the Selling Stockholders shall fail to
sell and deliver to the Underwriters the Common Shares to be sold and delivered
by such Selling Stockholders at the First Closing Date pursuant to this
Agreement, then the Underwriters may at their option, by written notice from the
Underwriters to the Company and the Selling Stockholders, either (i) terminate
this Agreement without any liability on the part of any Underwriter or, except
as provided in Sections 4, 6, 8 and 9 hereof, the Company or the Selling
Stockholders, or (ii) purchase the shares which the Company and other Selling
Stockholders have agreed to sell and deliver in accordance with the terms
hereof. If one or more of the Selling Stockholders shall fail to sell and
deliver to the Underwriters the Common Shares to be sold and delivered by such
Selling Stockholders pursuant to this Agreement at the First Closing Date, then
the Underwriters shall have the right, by written notice from the Underwriters
to the Company and the Selling Stockholders, to postpone the First Closing Date
or the Second Closing Date, as the case may be, but in no event for longer than
seven days in order that the required changes, if any, to the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected.
SECTION 18. GENERAL PROVISIONS. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in
two or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit.
The Table of Contents and the Section headings herein are for the convenience
of the parties only and shall not affect the construction or interpretation of
this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated
business person who was adequately represented by counsel during negotiations
regarding the provisions hereof, including, without limitation, the
indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company and the Custodian the enclosed
copies hereof, whereupon this instrument, along with all counterparts hereof,
shall become a binding agreement in accordance with its terms.
Very truly yours,
DYCOM INDUSTRIES, INC.
By:_________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman of the Board and Chief
Executive Officer
SELLING STOCKHOLDERS
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇/▇▇▇▇ ▇. ▇▇▇▇
Irrevocable Trust
By:_________________________
Name:
Title:
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41
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ Irrevocable Trust
By:_____________________________________
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Irrevocable Trust
By:_____________________________________
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ Irrevocable Trust
By:_____________________________________
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust
By:_____________________________________
Name:
Title:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust
By:_____________________________________
Name:
Title:
The Other Selling Stockholders named
in Schedule B
By:_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Attorney-in-fact
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The foregoing Underwriting Agreement is hereby confirmed and accepted
by the Representatives in San Francisco, California as of the date first above
written.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
EVEREN SECURITIES
▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY, INC.
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, LLC
Acting as Representatives of the
several Underwriters named in
the attached Schedule A.
By NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
By:
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Authorized Signatory
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SCHEDULE A
NUMBER OF
FIRM COMMON
UNDERWRITERS SHARES TO BE
PURCHASED
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC ........
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ............
EVEREN Securities ............................
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. ................
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC ...........
------------
Total ................................ 3,000,063
44
SCHEDULE B
NUMBER OF MAXIMUM
FIRM NUMBER OF
COMMON OPTIONAL COMMON
SELLING STOCKHOLDER SHARES SHARES
(ADDRESS) TO BE SOLD TO BE SOLD
--------- -------
Total...................... 1,500,063 100,000
========= =======
45
EXHIBIT A
Opinion of counsel for the Company to be delivered pursuant to
Section 5(d) of the Underwriting Agreement.
References to the Prospectus in this Exhibit A include any
supplements thereto at the Closing Date.
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Florida.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the
Underwriting Agreement.
(iii) The 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 for such
jurisdictions where the failure to so qualify or to be in good standing
would not, individually or in the aggregate, result in a Material Adverse
Change.
(iv) Each significant subsidiary (as defined in Rule 405 under the
Securities Act) is 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, to the best knowledge of such counsel, 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 for such jurisdictions where the failure to so qualify or
to be in good standing would not, individually or in the aggregate, result
in a Material Adverse Change.
(v) The authorized, issued and outstanding capital stock of the
Company (including the Common Stock) conform to the descriptions thereof
set forth in the Prospectus. All of the outstanding shares of Common Stock
(including the shares of Common Stock owned by Selling Stockholders) have
been duly authorized and validly issued, are fully paid and nonassessable
and, to the best of such counsel's knowledge, have been issued in
compliance with the registration and qualification requirements of federal
and state securities laws. The form of certificate used to evidence the
Common Stock is in due and proper form and complies with all applicable
requirements of the charter and by-laws of the Company and the Florida
General Corporation Act.
46
(vi) No stockholder of the Company or any other person has any preemptive
right, right of first refusal or other similar right to subscribe for or
purchase securities of the Company arising (i) by operation of the charter or
by-laws of the Company or the Florida General Corporation Act or (ii) to the
best knowledge of such counsel, otherwise.
(vii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(viii) The Common Shares to be purchased by the Underwriters from the
Company have been duly authorized for issuance and sale pursuant to the
Underwriting Agreement and, when issued and delivered by the Company pursuant to
the Underwriting Agreement against payment of the consideration set forth
therein, will be validly issued, fully paid and nonassessable.
(ix) Each of the Registration Statement and the Rule 462(b) Registration
Statement, if any, has been declared effective by the Commission under the
Securities Act. To the best knowledge of such counsel, no stop order suspending
the effectiveness of either of the Registration Statement or the Rule 462(b)
Registration Statement, if any, has been issued under the Securities Act and no
proceedings for such purpose have been instituted or are pending or are
contemplated or threatened by the Commission. Any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424(b) under the
Securities Act has been made in the manner and within the time period required
by such Rule 424(b).
(x) The Registration Statement, including any Rule 462(b) Registration
Statement, the Prospectus, and each amendment or supplement to the Registration
Statement and the Prospectus, as of their respective effective or issue dates
(other than the financial statements and supporting schedules and financial and
statistical data included therein or in exhibits to or excluded from the
Registration Statement, as to which no opinion need be rendered) comply as to
form in all material respects with the applicable requirements of the Securities
Act.
(xi) The Common Shares have been approved for listing on the New York Stock
Exchange.
(xii) The statements in the Prospectus under the caption "Description of
Capital Stock", insofar as such statements constitute summaries of the Company's
charter or by-law provisions and the Company's Shareholders Rights Plan
described therein, have been reviewed by such counsel and fairly present and
summarize, in all material respects, the matters referred to therein.
(xiii) To the best knowledge of such counsel, there are no legal or
governmental actions, suits or proceedings, pending or threatened which are
required
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to be disclosed in the Registration Statement, other than those legal or
governmental actions, suits or proceedings which are described in the
Registration Statement as arising in the ordinary course of business or those
otherwise disclosed in the Registration Statement.
(xiv) No consent, approval, authorization or other order of, or
registration or filing with, any Florida State, New York State or U.S. Federal
governmental authority or agency, is required for the Company's execution,
delivery and performance of the Underwriting Agreement and consummation of the
transactions contemplated thereby and by the Prospectus, except as required
under the Securities Act, applicable state securities or blue sky laws and from
the NASD.
(xv) The execution and delivery of the Underwriting Agreement by the
Company and the performance by the Company of its obligations thereunder (other
than performance by the Company of its obligations under the indemnification
section of the Underwriting Agreement, as to which no opinion need be rendered),
assuming due authorization, execution and delivery by each other party thereto,
(i) will not result in any violation of the provisions of the charter or by-laws
of the Company; and (ii) will not constitute a breach of, or Default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to the Amended and Restated Credit
Facility Agreement with a group of banks led by Dresdner Bank Lateinamerika AG.
(xvi) The Company is not, and after receipt of payment for the Common
Shares will not be, an "investment company" within the meaning of the Investment
Company Act.
(xvii) To the best knowledge of such counsel, neither the Company nor any
subsidiary is in violation of its charter or by-laws or any Florida law
applicable to the Company.
(xviii) Each document filed pursuant to the Exchange Act (other than the
financial statements and supporting schedules included therein, as to which no
opinion need be rendered) and incorporated or deemed to be incorporated by
reference in the Prospectus complied when so filed as to form in all material
respects with the Exchange Act.
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In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public or certified public accountants
for the Company and with representatives of the Underwriters during which
the contents of the Registration Statement and the Prospectus, and any
supplements or amendments thereto, and related matters were discussed and,
although such counsel has not undertaken to investigate or verify
independently and is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus (other than as
indicated above), including all documents incorporated or deemed to be
incorporated by reference therein, and any supplements or amendments
thereto, on the basis of the foregoing, no facts have come to their
attention which would lead them to believe that either the Registration
Statement or any amendments thereto, at the time the Registration Statement
or such amendments 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 or at the First Closing Date or the Second
Closing Date, as the case may be, contained an untrue statement of a
material fact or omitted 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 (it being understood that such counsel need
express no belief or opinion as to the financial statements and related
notes, the financial statement schedules or other financial or statistical
data included in the Registration Statement or the Prospectus or any
amendments or supplements thereto).
In rendering such opinion, such counsel may (A) assume, as to matters
involving the application of laws of any jurisdiction other than the General
Corporation Law of the State of Delaware, the New York Business Corporation Law
or the federal law of the United States, the correctness of the matters stated
in the opinion (which shall be dated the First Closing Date or the Second
Closing Date, as the case may be, shall be satisfactory in form and substance to
the Underwriters, shall expressly state that the Underwriters may rely on such
opinion as if it were addressed to them and shall be furnished to the
Underwriters) of other counsel of good standing whom they believe to be reliable
and who are satisfactory to counsel for the Underwriters, and (B) rely as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials.
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EXHIBIT B
The opinion of such counsel pursuant to Section 5(h) shall be rendered to
the Underwriters at the request of the Company and shall so state therein.
References to the Prospectus in this Exhibit B include any supplements thereto
at the Closing Date.
(i) The Underwriting Agreement has been duly authorized, executed and
delivered by or on behalf of, such Selling Stockholder.
(ii) The execution and delivery by such Selling Stockholder of, and the
performance by such Selling Stockholder of its obligations under, the
Underwriting Agreement and its Custodian Agreement and its Power of Attorney
will not contravene or conflict with, result in a breach of, or constitute a
default under, the charter or by-laws, partnership agreement, trust agreement or
other organizational documents, as the case may be, of such Selling Stockholder,
or, to the best of such counsel's knowledge, violate or contravene any provision
of applicable law or regulation, or violate or contravene any provision of
applicable law or regulation, or violate, result in a breach of or constitute a
default under the terms of any other agreement or instrument to which such
Selling Stockholder is a party or by which it is bound, or any judgment, order
or decree applicable to such Selling Stockholder of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
such Selling Stockholder.
(iii) To the best of such counsel's knowledge, such Selling Stockholder has
good and valid title to all of the Common Shares which may be sold by such
Selling Stockholder under the Underwriting Agreement and has the legal right and
power, and all authorizations and approvals required by the trust agreement or
other organizational documents, as the case may be, to enter into the
Underwriting Agreement and its Custodian Agreement and its Power of Attorney, to
sell, transfer and deliver all of the Common Shares which may sold by such
Selling Stockholder under the Underwriting Agreement and to comply with its
other obligations under the Underwriting Agreement, its Custodian Agreement and
its Power of Attorney.
(iv) Each Power of Attorney and Custody Agreement of such Selling
Stockholder has been duly authorized, executed and delivered by such Selling
Stockholder and is a valid and binding agreement of such Selling Stockholder,
enforceable in accordance with its terms, except as rights to indemnification
thereunder may be limited by applicable law and except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or by
general equitable principles.
(v) Assuming that (1) Cede & Co is not a securities intermediary; (2) the
Underwriters are Depository Trust Company ("DTC") participants; as such, each
Underwriter maintains a customer account with DTC in the name of such
Underwriter and this customer account is the subject of an agreement between DTC
and such Underwriter which provides, among other things, that (a) financial
assets (Section 8-102(a)(9) UCC) (including any financial assets consisting of,
or of security
50
entitlements (Section 8-102(a)(17) UCC) in, the shares of Common Stock of the
Selling Stockholders) may be credited to this customer account; (b) DTC
undertakes to treat the Underwriter as entitled to exercise the rights that
comprise the financial assets so directed from time to time to the customer
account; (c) the agreement between DTC and each Underwriter is governed by New
York law (such that DTC's "securities intermediary's jurisdiction" (Section
8-110(e) UCC) is New York); (3) upon Cede & Co.'s or ______________________'s
as custodian for DTC acquiring possession of the security certificates
evidencing the shares of Common Stock of the Selling Stockholders. DTC actually
indicated by book entry that financial assets comprised of such shares of
Common Stock have been credited to the Underwriter's customer account; and (4)
neither DTC nor any of the Underwriters have notice of any adverse claim
(Section 8-105, Section 8-102(a)(1) UCC) to the shares of Common Stock of the
Selling Stockholders or any security entitlement therein, then
(a) DTC has acquired the Common Stock of the Selling Stockholders free
of any adverse claim.
(b) Upon credit by DTC to the customers' account of the financial
assets comprised of the Common Stock of the Selling Stockholders, each
Underwriter will acquire a security entitlement from DTC with respect to the
Common Stock of the Selling Stockholders and an action (however framed) based
on an adverse claim to such financial assets may not be asserted against such
Underwriter.
(vi) To the best of such counsel's knowledge, no consent, approval,
authorization or other order of, or registration or filing with, any
governmental authority or agency, is required for the consummation by such
Selling Stockholder of the transactions contemplated in the Underwriting
Agreement, except as required under the Securities Act, applicable state
securities or blue sky laws.
In rendering such opinion, such counsel may (A) assume as to matters
involving the application of laws of any jurisdiction other than the General
Corporation Law of the State of Delaware, the New York Business Corporation Law
or the federal law of the United States, the correctness of the matters stated
in the opinion (which shall be dated the First Closing Date or the Second
Closing Date, as the case may be, shall be satisfactory in form and substance
to the Underwriters, shall expressly state that the Underwriters may rely on
such opinion as if it were addressed to them and shall be furnished to the
Underwriters) of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the Underwriters, and (B) rely
as to matters of fact, to the extent they deem proper, on certificates of the
Selling Stockholders and public officials.
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51
EXHIBIT C
[Date]
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
EVEREN Securities
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC
c/o NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: Dycom Industries, Inc. (the "Company")
Ladies & Gentlemen
The undersigned is an owner of record or beneficially of certain
shares of Common Stock of the Company ("Common Stock") or securities
convertible into or exchangeable or exercisable for Common Stock. The Company
proposes to carry out a public offering of Common Stock (the "Offering") for
which you will act as the underwriters. The undersigned recognizes that the
Offering will be of benefit to the undersigned and will benefit the Company by,
among other things, raising additional capital for its operations. The
undersigned acknowledges that you are relying on the representations and
agreements of the undersigned contained in this letter in carrying out the
Offering and in entering into underwriting arrangements with the Company with
respect to the Offering.
In consideration of the foregoing, the undersigned hereby agrees that
the undersigned will not, without the prior written consent of NationsBanc
▇▇▇▇▇▇▇▇▇▇ Securities LLC (which consent may be withheld in its sole
discretion), directly or indirectly, sell, offer, contract or grant any option
to sell (including without limitation any short sale), pledge, transfer,
establish an open "put equivalent position" within the meaning of Rule 16a-1(h)
under the Securities Exchange Act of 1934, or otherwise dispose of any shares
of Common Stock, options or warrants to acquire shares of Common Stock, or
securities exchangeable or exercisable for or convertible into shares of Common
Stock currently or hereafter owned either of record or beneficially (as defined
in Rule 13d-3 under Securities Exchange Act of 1934, as amended) by the
undersigned, or publicly announce the undersigned's intention to do any of the
foregoing, for a period commencing on the date hereof and continuing through
the close of trading on the date 90 days after the date of the Prospectus;
provided that the undersigned may give or pledge shares of Common Stock if the
donee or pledgee agrees in writing, prior to the making of
52
such gift or pledge, not to sell, offer, dispose of or otherwise transfer any
gifted or pledged shares during said 90-day period without the prior written
consent of NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities (which consent may be withheld at
the sole discretion of NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities). The undersigned also
agrees and consents to the entry of stop transfer instructions with the
Company's transfer agent and registrar against the transfer of shares of Common
Stock or securities convertible into or exchangeable or exercisable for Common
Stock held by the undersigned except in compliance with the foregoing
restrictions.
With respect to the Offering only, the undersigned waives any
registration rights relating to registration under the Securities Act of any
Common Stock owned either of record or beneficially by the undersigned,
including any rights to receive notice of the Offering.
This agreement is irrevocable and will be binding on the undersigned
and the respective successors, heirs, personal representatives, and assigns of
the undersigned.
___________________________________
Printed Name of Holder
By ________________________________
Signature
___________________________________
Printed Name of Person Signing
(and indicate capacity of person
signing if signing as custodian,
trustee, or on behalf of an entity)
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