1
Exhibit 1.1
10,900,000 Shares
ORIUS CORP.
Common Stock
UNDERWRITING AGREEMENT
August __, 1999
Deutsche Bank Securities, Inc.
Banc of America Securities LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company
As Representatives of the
Several Underwriters
c/o Deutsche Bank Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Orius Corp., a Florida corporation (the "Company"), proposes to issue
and sell to the several underwriters (the "Underwriters") named in Schedule I
hereto for whom you are acting as representatives (the "Representatives") and
certain stockholders of the Company named in Schedule II hereto severally and
not jointly propose to sell to the several Representatives, an aggregate of
10,900,000 shares of the Company's Common Stock, par value $.01 per share
(the "Firm Shares"), of which (a) 7,400,000 shares are to be issued and sold by
the Company, (b) 3,500,000 shares are to be sold by the selling stockholders,
each selling stockholder selling the number of Firm Shares set forth opposite
such selling stockholder's name on Schedule II hereto, and (c) certain security
holders of the Company named in Schedule II (the "Selling Warrant Holders")
propose to sell to the Underwriters warrants (the "Warrants") to purchase an
aggregate of ________ shares of the Company's authorized and unissued Common
Stock. The Underwriters propose to exercise the Warrants and sell the shares
issuable upon such exercise (the "Warrant Shares") pursuant to this Agreement.
The respective amounts of the Warrants to be purchased by the several
Underwriters are set forth opposite their names in Schedule II hereto, and the
number of Warrant Shares represented by Warrants to be sold by each of the
Selling Warrant Holders is set forth opposite such Selling Warrant Holder's
name in Schedule II hereto. The respective amounts of the Firm Shares to be so
purchased by the several Underwriters are set forth opposite their names in
Schedule I hereto. The Company also proposes to issue and sell, and certain
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selling stockholders also propose to sell, at the Underwriters' option an
aggregate of up to 1,635,000 additional shares of the Company's Common Stock
(the "Option Shares") as set forth below.
As the Representatives, you have advised the Company and the Selling
stockholders that you are authorized to enter into this Underwriting Agreement
(this "Agreement") on behalf of the several Underwriters, and that the several
Underwriters are willing, acting severally and not jointly, to purchase the
numbers of Firm Shares set forth opposite their respective names in Schedule I,
plus their pro rata portion of the Option Shares if you elect to exercise the
over-allotment option in whole or in part for the accounts of the several
Underwriters. The Firm Shares, the Warrant Shares and the Option Shares (to the
extent the aforementioned option is exercised) are herein collectively called
the "Shares." The Selling stockholders and the Selling Warrant Holders are
hereinafter sometimes referred to as the "Selling Security Holders." The
Company and the Selling Security Holders are hereinafter to collectively as the
"Sellers."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the Company.
The Company represents and warrants to each of the Underwriters as
follows:
(a) A registration statement on Form S-1 (Reg. No. 333-79743)
with respect to the Shares has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the Rules and Regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and has been filed with the Commission. The
Company meets the requirements for the use of Form S-1. Copies of such
registration statement, including any amendments thereto, the
preliminary prospectuses (meeting the requirements of the Rules and
Regulations in all material respects) contained therein and the
exhibits, financial statements and schedules, as finally amended and
revised, have heretofore been delivered by the Company to you. Such
registration statement, together with any registration statement filed
by the Company pursuant to Rule 462(b) of the Act, herein referred to
as the "Registration Statement," which shall be deemed to include all
information omitted therefrom in reliance upon Rule 430A and contained
in the Prospectus referred to below, has become effective under the
Act and no post-effective amendment to the Registration Statement has
been filed as of the date of this Agreement. "Prospectus" means (a)
the form of prospectus first filed with the Commission pursuant to
Rule 424(b) or (b) the last preliminary prospectus included in the
Registration Statement filed prior to the time it becomes effective or
filed pursuant to Rule 424(a) under the Act that is delivered by the
Company to the Underwriters for delivery to purchasers of the Shares,
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together with the term sheet or abbreviated term sheet filed with the
Commission pursuant to Rule 424(b)(7) under the Act. Each preliminary
prospectus included in the Registration Statement prior to the time it
becomes effective is herein referred to as a "Preliminary Prospectus."
(b) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Florida, with corporate power and authority to own or lease its
properties and conduct its business as described in the Registration
Statement. Each of the Company's subsidiaries as listed in Exhibit
21.1 of the Registration Statement (collectively, the "Subsidiaries")
has been duly organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation,
with corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement. As of
the date hereof, the Company has no subsidiaries except those listed
in Exhibit 21.1 to the Registration Statement. The Company and each of
the Subsidiaries are duly qualified to transact business in all
jurisdictions in which the conduct of their respective businesses
requires such qualification except where the failure to be so
qualified would not have a material adverse effect on the earnings,
business, properties, assets, rights, operations, condition (financial
or otherwise) or prospects of the Company and its Subsidiaries, taken
as a whole (a "Material Adverse Effect"). The outstanding shares of
capital stock of each of the Subsidiaries have been duly authorized
and validly issued, are fully paid and non-assessable. As of the
Closing Date (as hereinafter defined), all of the outstanding shares
of capital stock of each of the Subsidiaries will be owned by the
Company free and clear of all liens, encumbrances and equities and
claims, and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert
any obligations into shares of capital stock or ownership interests in
any of the Subsidiaries will be outstanding, except for the liens on
the capital stock of the Subsidiaries issued in favor of the Company's
lenders described in the Registration Statement and other than those
created by the Underwriters.
(c) The outstanding shares of Common Stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; the Shares to be issued and sold by the Company
pursuant to the terms of this Agreement have been duly authorized and
when issued and paid for as contemplated herein will be validly
issued, fully paid and non-assessable; and no preemptive rights of
stockholders exist with respect to any of the Shares or the issue and
sale thereof. Neither the filing of the Registration Statement nor the
offering or sale of the Shares as contemplated by this Agreement gives
rise to any rights, other than those which have been waived or
satisfied, for or relating to the registration of any shares of Common
Stock.
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(d) The information set forth under the caption
"Capitalization" in the Prospectus is true and correct. All of the
Shares conform to the description thereof contained in the
Registration Statement. The form of certificates for the Shares
conforms to the corporate law of the jurisdiction of the Company's
incorporation.
(e) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed offering
of the Shares nor instituted proceedings for that purpose. The
Registration Statement contains, and the Prospectus and any amendments
or supplements thereto will contain in all material respects, all
statements which are required to be stated therein by, and will
conform in all material respects to the requirements of the Act and
the Rules and Regulations. The Registration Statement and any
amendment thereto do not contain, and will not contain, any untrue
statement of a material fact and do not omit, and will not omit, to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus and any
amendments and supplements thereto do not contain, and will not
contain, any untrue statement of a material fact; and do not omit, and
will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(f) All of the financial statements of the Company and the
Subsidiaries, in each case together with related notes and schedules,
as set forth in the Registration Statement, present fairly in all
material respects the financial position and the results of operations
and cash flows of the Company and the Subsidiaries, respectively, at
the indicated dates and for the indicated periods. Such financial
statements and related schedules have been prepared in accordance with
generally accepted accounting principles, consistently applied
throughout the periods involved, except as disclosed therein, and all
adjustments necessary for a fair presentation of results for such
periods have been made. The summary historical and pro forma financial
and statistical data included in the Registration Statement present
fairly the information shown therein and such data have been compiled
on a basis consistent with the financial statements presented therein
and the books and records of the Company and each of the Subsidiaries,
as applicable. The pro forma combined financial statements of the
Company, together with the related notes, as set forth in the
Registration Statement and the Prospectus, present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the pro forma bases
described therein, and in the opinion of the Company, the assumptions
used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions or
circumstances referred to therein.
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(g) The accounts receivable of the Company and the
Subsidiaries reflected in the financial statements, in each case
together with related notes and schedules, as set forth in the
Registration Statement, and such additional accounts receivable as are
reflected on the books of the Company and the Subsidiaries, are good
and collectible except to the extent reserved against thereon (which
reserves have been determined based upon actual prior experience and
are consistent with prior practices). All such accounts receivable
(except to the extent so reserved against) are valid, genuine and
subsisting, arise out of bona fide sales and deliveries of goods,
performance of services or other business transactions and are not
subject to defenses, set-offs or counterclaims.
(h) PricewaterhouseCoopers LLP, who have certified certain of
the financial statements filed with the Commission as part of the
Registration Statement, are independent public accountants as required
by the Act and the Rules and Regulations.
(i) There is no action, suit, claim or proceeding pending or,
to the knowledge of the Company, threatened against the Company or any
of the Subsidiaries before any court or administrative agency or
otherwise, which if determined adversely to the Company or any of the
Subsidiaries is reasonably likely to result in any Material Adverse
Effect, or to prevent the consummation of the transactions
contemplated hereby.
(j) The Company and the Subsidiaries each has good and
marketable title to all of its properties and assets reflected in its
financial statements (or as described in the Registration Statement)
as set forth in the Registration Statement, subject to no lien,
mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as described in the
Registration Statement) or which are not material in amount. Each of
the Company and the Subsidiaries occupies its leased properties under
valid and binding leases conforming in all material respects to the
description thereof set forth in the Registration Statement.
(k) Each of the Company and the Subsidiaries has filed all
federal, state, local and foreign income tax returns which have been
required to be filed and have paid all taxes indicated by said returns
and all assessments received by it or any of them to the extent that
such taxes have become due and are not being contested in good faith
except where the failure to file or pay such taxes would not result in
a Material Adverse Effect. All tax liabilities have been adequately
provided for in the financial statements of the Company and the
Subsidiaries, as applicable.
(l) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or
supplemented, there has not been any Material Adverse Effect or any
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development known to the Company which will result in a Material
Adverse Effect, whether or not occurring in the ordinary course of
business, and there has not been any material transaction entered into
or any material transaction that is probable of being entered into by
the Company and the Subsidiaries, other than transactions in the
ordinary course of business and changes and transactions described in
the Registration Statement, as it may be amended or supplemented.
Neither the Company nor any of the Subsidiaries has any material
contingent obligations which are not disclosed in the Company's
financial statements, as applicable, included in the Registration
Statement.
(m) Neither the Company nor any of the Subsidiaries is, or
with the giving of notice or lapse of time or both, will be, in
violation of or in default under its Charter or By-Laws or under any
agreement, lease, contract, indenture or other instrument or
obligation to which it is a party or by which it, or any of its
properties, is bound and which would reasonably be expected to have a
Material Adverse Effect. The execution and delivery of this Agreement
and the consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or any of the Subsidiaries is a party,
or of the Charter or By-Laws of the Company or any of the Subsidiaries
or any order, rule or regulation applicable to the Company or any of
the Subsidiaries of any court or of any regulatory body or
administrative agency or other governmental body having jurisdiction.
No consent, approval, authorization or order of, or filing with, any
court or governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement in connection with
the issuance or sale of the securities by the Company, except such as
have been obtained under the Act and such as may be required under the
state securities laws in connection with the purchase and distribution
of the Shares by the Underwriters.
(n) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in connection with
the execution and delivery by the Company of this Agreement and the
consummation of the transactions herein contemplated (except such
additional steps as may be required by the Commission or the National
Association of Securities Dealers, Inc. (the "NASD")) has been
obtained or made and is in full force and effect.
(o) The Common Stock is registered pursuant to Section 12(b)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and is listed on The New York Stock Exchange, 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
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Act or delisting the Common Stock from The New York Stock Exchange,
nor has the Company received any notification that the Commission or
the NASD is contemplating terminating such registration or listing.
(p) The Company and each of the Subsidiaries hold all
material licenses, certificates and permits from governmental
authorities which are necessary to the conduct of their businesses;
and except as disclosed in the Registration Statement, to the
Company's knowledge neither the Company nor any of the Subsidiaries
has infringed any patents, patent rights, trade names, trademarks or
copyrights, which infringement would reasonably be expected to have a
Material Adverse Effect. The Company knows of no material infringement
by others of patents, patent rights, trade names, trademarks or
copyrights owned by or licensed to the Company or any of the
Subsidiaries.
(q) Neither the Company, nor to the Company's best knowledge,
any of its affiliates or any of the Subsidiaries or any of their
affiliates, has taken or may take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which
might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to facilitate
the sale or resale of the Shares.
(r) Neither the Company nor any of the Subsidiaries is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended (the "1940 Act") and the
rules and regulations of the Commission thereunder.
(s) The Company and each of its Subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurances that: (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(t) The Company and each of its Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
reasonably adequate for the conduct of their respective businesses and
the value of their respective properties and as the Company believes
is reasonably customary for companies engaged in similar industries.
(u) The Company and each of its Subsidiaries are in
compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as
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amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has
occurred with respect to any "pension plan" (as defined in ERISA) for
which the Company or any of its Subsidiaries would have any liability;
neither the Company nor any of its Subsidiaries has incurred nor
expects to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan," or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder
(the "Code"); and each "pension plan" for which the Company or any of
its Subsidiaries would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification.
(v) No labor dispute with the employees of the Company or any
of its Subsidiaries exists, or to the Company's knowledge, is
threatened other than such disputes which would not have a Material
Adverse Effect.
(w) There is (i) no significant unfair labor practice
complaint pending against the Company or any of its Subsidiaries or,
to the best knowledge of the Company, threatened against any of them,
before the National Labor Relations Board or any state or local labor
relations board, and no significant grievance or more significant
arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Company or any of its
Subsidiaries or, to the best knowledge of the Company, threatened
against any of them, and (ii) no significant strike, labor dispute,
slowdown or stoppage pending against the Company or any of its
Subsidiaries or, to the best knowledge of the Company, threatened
against it any of its Subsidiaries except for such actions specified
in clause (i) or (ii) above, which, singly or in the aggregate could
not reasonably be expected to have a material adverse effect on the
Company and its Subsidiaries, taken as a whole.
(x) As of the Closing Date, all Date Data and Date-Sensitive
Systems are Year 2000 Compliant. "Date Data" means any data of any
type that includes date information or which is otherwise derived
from, dependent on or related to date information. "Date-Sensitive
System" means any software, microcode or hardware system or component,
including any electronic or electronically controlled system or
component, that processes any Date Data and that is installed, in
development or on order by the Company or the Subsidiaries for their
internal use, or that the Company or the Subsidiaries sell, lease,
license, assign or otherwise provide, or the provision or operation of
which the Company or the Subsidiaries provide the benefit, to their
customers, vendors, suppliers, affiliates or any other third party.
"Year 2000 Compliant" means (i) with respect to Date Data, that such
data is in proper format and accurate for all dates in the twentieth
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and twenty-first centuries, and (ii) with respect to Date-Sensitive
Systems, that each such system accurately processes all Date Data,
including for the twentieth and twenty-first centuries, without loss
or any functionality or performance, including but not limited to
calculating, comparing, sequencing, storing and displaying such Date
Data (including all leap year considerations), when used as a
stand-alone system or in combination with other software or hardware.
The Company or the Subsidiaries have obtained written representations
or assurances from each entity that (x) provides Date Data to the
Company or the Subsidiaries, (y) processes in any way Date Data for
the Company or the Subsidiaries or otherwise provides any material
product or service to the Company or the Subsidiaries that is
dependent on Year 2000 Compliant Date Data or a Year 2000 Compliant
Date-Sensitive System, that all of such entity's Date Data and
Date-Sensitive Systems that are used for, or on behalf of, the Company
or the Subsidiaries are Year 2000 Compliant.
(y) (i) Except as otherwise disclosed in writing to the
Underwriters, (A) each of the Company and its Subsidiaries has
conducted its business in compliance with applicable Environmental
Laws, including without limitation, having all permits, licenses and
other approvals and authorizations necessary for the operation of
their respective businesses as presently conducted, (B) none of the
properties owned by the Company and its Subsidiaries contain any
Hazardous Substance as a result of any activity of any of the Company
or its Subsidiaries in amounts exceeding the levels permitted by
applicable Environmental Laws, (C) the Company and its Subsidiaries
have not received any written notices, demand letters or requests for
information from any Federal, state, local or foreign governmental
entity or third party indicating that it may be in violation of, or
liable under, any Environmental Law in connection with the ownership
or operation of its business, (D) there are no civil, criminal or
administrative actions, suits, demands, claims, hearings,
investigations or proceedings pending or, to the Company's knowledge,
threatened, against the Company or any of the Subsidiaries relating to
any violation, or alleged violation, of any Environmental Law, (E) no
reports have been filed, or are required to be filed, by the Company
or any of the Subsidiaries concerning the release of any Hazardous
Substance or the threatened or actual violation of any Environmental
Law, (F) no Hazardous Substance has been disposed of, released or
transported in violation of any applicable Environmental Law from any
properties owned by the Company or any of the Subsidiaries as a result
of any activity of the Company or of any of the Subsidiaries during
the time such properties were owned, leased, or operated by the
Company or any of the Subsidiaries, (G) there have been no
environmental investigations, studies, audits, tests, reviews or other
analysis regarding compliance or non-compliance with any applicable
Environmental Law conducted by or which are in the possession of the
Company or any of the Subsidiaries relating to the activities of the
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Company or any of the Subsidiaries (H) there are no underground
storage tanks on, in or under any properties owned by Company or any
of its Subsidiaries and no underground storage tanks have been closed
or removed from any of such properties during the time such properties
were owned, leased or operated by the Company or any of its
Subsidiaries, (I) there is no asbestos or asbestos containing material
present in any of the properties owned by the Company or any of its
Subsidiaries, and no asbestos has been removed from any of such
properties during the time such properties were owned, leased or
operated by it, and (J) neither the Company or any of its Subsidiaries
nor any of their respective properties are subject to any material
liabilities or expenditures (fixed or contingent) relating to any
suit, settlement, court order, administrative order, regulatory
requirement, judgment or claim asserted or arising under any
Environmental Law, except for violations of the foregoing clauses (A)
through (J) that, singly or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
(ii) As used herein, "Environmental Law" means any
federal, state, local or foreign law, statute, ordinance, rule,
regulation, code, license, permit, authorization, approval, consent,
legal doctrine, order, judgment, decree, injunction, requirement or
agreement with any governmental entity relating to (A) the protection,
preservation or restoration of the environment (including, without
limitation, air, water vapor, surface water, groundwater, drinking
water supply, surface land, subsurface land, plant and animal life or
any other nature resource) or to human health or safety or (B) the
exposure to, or the use, storage, recycling, treatment, generation,
transportation, processing, handling, labeling, production, release or
disposal of Hazardous Substances, in each case as amended as in effect
on the Closing Date. The term Environmental Law includes, without
limitation, (X) the Federal Comprehensive Environmental Response
Compensation and Liability Act of 1980, the Superfund Amendments and
Reauthorization Act, the Federal Water Pollution Control Act, the
Federal Resource Conservation and Recovery Act of 1976 (including the
Hazardous and Solid Waste Amendments thereto), the Federal Solid Waste
Disposal and the Federal Toxic Substances Control Act, the Federal
Insecticide, Fungicide and Rodenticide Act, the Federal Occupational
Safety and Health Act of 1970, each as amended and as in effect on the
Closing Date, and (Y) any common law or equitable doctrine (including,
without limitation, injunctive relief and tort doctrines such as
negligence, nuisance, trespass and strict liability) that may impose
liability or obligations for injuries or damages due to, or threatened
as a result of, the presence of, effects of or exposure to any
Hazardous Substance.
(iii) As used herein, "Hazardous Substance" means
any substance presently or hereafter listed, defined, designated, or
classified as hazardous, toxic, radioactive, or dangerous, or
otherwise regulated, under any Environmental Law. Hazardous Substance
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includes any substance to which exposure is regulated by any
governmental authority or any Environmental Law including, without
limitation, any toxic waste, pollutant, contaminant, hazardous
substance, toxic substance, hazardous waste, special waste, industrial
substance or petroleum or any derivative or by-product thereof, radon,
radioactive material, asbestos or asbestos containing material, urea,
formaldehyde, foam insulation, lead or polychlorinated biphenyls.
2. Representations and Warranties of the Selling Security Holders.
Each Selling Security Holder represents and warrants, severally as to
itself and not jointly, to each Representative that:
(a) Such Selling Security Holder is the lawful owner of the
Shares to be sold by such Selling Shareholder pursuant to this
Agreement and has, and on the Closing Date will have, good and clear
title to such Shares, free of all restrictions on transfer, liens,
encumbrances, security interests, equities and claims whatsoever.
(b) Such Selling Security Holder has, and on the Closing Date
will have, full legal right, power and authority, and all
authorization and approval required by law, to enter into this
Agreement and the Custody Agreement and Power of Attorney signed by
such Selling Security Holder and American Stock Transfer & Trust
Company, as Custodian, relating to the deposit of the Shares or the
Warrants to be sold by such Selling Security Holder and appointing
certain individuals as such Selling Security Holder's
attorneys-in-fact (the "Attorneys") to the extent set forth therein
(the "Custody Agreement and Power of Attorney") and to sell, assign,
transfer and deliver the Shares to be sold by such Selling Security
Holder in the manner provided herein.
(c) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Security Holder. The Custody
Agreement and Power of Attorney of such Selling Security Holder has
been duly authorized, executed and delivered by such Selling Security
Holder and is a valid and binding agreement of such Selling Security
Holder, enforceable in accordance with its terms except as rights to
indemnify and contribution hereunder may be limited by federal or
state securities laws; such Selling Security Holder has, among other
things, authorized the Attorneys, or any one of them, to execute and
deliver on such Selling Security Holder's behalf this Agreement and
any other document that they, or any one of them, may deem necessary
or desirable in connection with the transactions contemplated hereby
and thereby and to deliver the Shares to be sold by such Selling
Security Holder pursuant to this Agreement.
(d) The execution, delivery and performance of this Agreement
and the Custody Agreement and Power of Attorney of such Selling
Security Holder by or on behalf of such Selling Security Holder, the
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compliance by such Selling Security Holder with all the provisions
hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (A) require any consent,
approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required
under the securities or Blue Sky laws of the various states), (B)
conflict with or constitute a breach of any of the terms or provisions
of, or a default under, the organizational documents of such Selling
Security Holder, if such Selling Security Holder is not an individual,
or any indenture, loan agreement, mortgage, lease or other agreement
or instrument to which such Selling Security Holder is a party or by
which such Selling Security Holder or any property of such Selling
Security Holder is bound or (iii) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of
any court or any governmental body or agency having jurisdiction over
such Selling Security Holder or any property of such Selling Security
Holder.
(e) The information in the Registration Statement under the
caption "Principal and Selling Stockholders" which specifically
relates to such Selling Security Holder does not, and will not on the
Closing Date, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(f) At any time during the period described in Section 2(e),
if there is any change in the information referred to in Section 3(b),
such Selling Security Holder will immediately notify you of such
change.
(g) Each certificate signed by or on behalf of such Selling
Security Holder and delivered to the Underwriters or counsel for the
Underwriters shall be deemed to be a representation and warranty by
such Selling Security Holder to the Underwriters as to the matters
covered thereby.
(h) Such Selling Security Holder has not taken and will not
take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale
or resale of the Shares.
(i) The Shares to be sold by such Selling Security Holder
have been duly authorized and are validly issued, fully paid and
non-assessable.
(j) Upon delivery of and payment for the Shares to be sold by
such Selling Security Holder pursuant to this Agreement, good and
clear title to such Shares will pass to the Underwriters, free of all
restrictions on transfer, liens, encumbrances, security interests,
equities and claims whatsoever.
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3. Purchase, Sale and Delivery of the Firm Shares.
(a) On the basis of the representations, warranties and
covenants herein contained, and subject to the terms and conditions
herein set forth, the Sellers, severally and not jointly, agree to
sell to the Underwriters and each Underwriter agrees, severally and
not jointly, to purchase, at a price of $_____ per share, the number
of Firm Shares set forth opposite the name of each Underwriter in
Schedule I hereof, subject to adjustments in accordance with Section 9
hereof.
(b) Payment for the Firm Shares to be sold hereunder is to be
made in same day funds via wire transfer to the order of the Sellers
against delivery of the Firm Shares to the Representatives for the
several accounts of the Underwriters. Such payment and delivery are to
be made at the offices of Deutsche Bank Securities, Inc., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, at 10:00 a.m., Baltimore time, on the
[third] business day after the date of this Agreement or at such other
time and date not later than 4 business days thereafter as you and the
Company shall agree upon, such time and date being herein referred to
as the "Closing Date." (As used herein, "business day" means a day on
which The New York Stock Exchange is open for trading and on which
banks in New York are open for business and are not permitted by law
or executive order to be closed).
(c) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Company hereby grants an option to the several
Underwriters to purchase the Option Shares at the price per share as
set forth in paragraph (a) of this Section 3. The option granted
hereby may be exercised in whole or in part by giving written notice
(i) at any time before the Closing Date and (ii) only once thereafter
within 30 days after the date of this Agreement, by you, as
Representatives of the several Underwriters, to the Company setting
forth the number of Option Shares as to which the several Underwriters
are exercising the option, the names and denominations in which the
Option Shares are to be registered and the time and date at which such
certificates are to be delivered. The time and date at which the
Option Shares are to be delivered shall be determined by the
Representatives but shall not be earlier than 3 nor later than 10 full
business days after the exercise of such option, nor in any event
prior to the Closing Date (such time and date being herein referred to
as the "Option Closing Date"). If the date of exercise of the option
is 3 or more days before the Closing Date, the notice of exercise
shall set the Closing Date as the Option Closing Date. The number of
Option Shares to be purchased by each Underwriter shall be in the same
proportion to the total number of Option Shares being purchased as the
number of Firm Shares being purchased by such Underwriter bears to the
total number of Firm Shares, adjusted by you in such manner as to
avoid fractional shares. The option with respect to the Option Shares
granted hereunder may be exercised only to cover over-allotments in
the sale of the Firm Shares by the Underwriters. You, as
Representatives of the several Underwriters, may cancel such option at
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any time prior to its expiration by giving written notice of such
cancellation to the Company. To the extent, if any, that the option is
exercised, payment for the Option Shares shall be made on the Option
Closing Date in same day funds via wire transfer to the order of the
Company against delivery of certificates therefor at the offices of
Deutsche Bank Securities, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
The Company shall not be obligated to sell or deliver Firm Shares
except upon tender of payment by the Underwriters for all the Firm
Shares agreed to be purchased by them hereunder.
4. Offering by the Underwriters.
It is understood that the Underwriters are to make a public offering
of the Firm Shares as soon as the Representatives deem it advisable to do so.
The Firm Shares are to be initially offered to the public at the initial public
offering price set forth in the Prospectus. The Representatives may from time
to time thereafter change the public offering price and other selling terms. To
the extent, if at all, that any Option Shares are purchased pursuant to Section
2 hereof, the Underwriters will offer them to the public on the foregoing
terms. It is further understood that you will act as the Representatives for
the Underwriters in the offering and sale of the Shares in accordance with a
Master Agreement Among Underwriters entered into by you and the several other
Underwriters.
5. Covenants of the Company.
The Company covenants and agrees with the Underwriters that:
(a) The Company will (A) cause the Registration Statement to
become effective or, if the procedure in Rule 430A of the Rules and
Regulations is followed, to prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a Prospectus
in a form approved by the Representatives containing information
previously omitted at the time of effectiveness of the Registration
Statement in reliance on Rule 430A of the Rules and Regulations, and
(B) not file any amendment to the Registration Statement or supplement
to the Prospectus of which the Representatives shall not previously
have been advised and furnished with a copy or to which the
Representatives shall have reasonably objected in writing or which is
not in compliance with the Rules and Regulations.
(b) The Company will advise the Representatives promptly (A)
when the Registration Statement or any post-effective amendment
thereto shall have become effective, (B) of receipt of any comments
from the Commission, (C) of any request of the Commission for
amendment of the Registration Statement or for supplement to the
Prospectus or for any additional information and (D) of the issuance
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by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the use of the Prospectus or of the
institution of any proceedings for that purpose. The Company will use
its best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus and to obtain as
soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities laws
of such jurisdictions as the Representatives may reasonably have
designated in writing and will make such applications, file such
documents, and furnish such information as may be reasonably required
for that purpose, provided the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so
qualified or required to file such a consent. The Company will, from
time to time, prepare and file such statements, reports, and other
documents, as are or may be reasonably required to continue such
qualifications in effect for so long a period as the Representatives
may reasonably request for distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary
Prospectus as the Representatives may reasonably request. The Company
will deliver to, or upon the order of, the Representatives during the
period when delivery of a Prospectus is required under the Act, as
many copies of the Prospectus in final form, or as thereafter amended
or supplemented, as the Representatives may reasonably request. The
Company will deliver to the Representatives at or before the Closing
Date, three signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and will
deliver to the Representatives such number of copies of the
Registration Statement (including such number of copies of the
exhibits filed therewith that may reasonably be requested), and of all
amendments thereto, as the Representatives may reasonably request.
(e) The Company will comply with the Act and the Rules and
Regulations and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the
distribution of the Shares as contemplated in this Agreement and the
Prospectus. If during the period in which a prospectus is required by
law to be delivered by an Underwriter or dealer, any event shall occur
as a result of which, in the judgment of the Company or in the
reasonable opinion of the Underwriters, it becomes necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, not misleading, or, if it is necessary at
any time to amend or supplement the Prospectus to comply with any law,
the Company promptly will prepare and file with the Commission an
appropriate amendment to the Registration Statement or supplement to
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the Prospectus so that the Prospectus as so amended or supplemented
will not, in the light of the circumstances when it is so delivered,
be misleading, or so that the Prospectus will comply with the law.
(f) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not
later than 15 months after the effective date of the Registration
Statement, an earning statement (which need not be audited) in
reasonable detail, covering a period of at least 12 consecutive months
beginning after the effective date of the Registration Statement,
which earning statement shall satisfy the requirements of Section
11(a) of the Act and Rule 158 of the Rules and Regulations and will
advise you in writing when such statement has been so made available.
(g) The Company will, for a period of 3 years from the
Closing Date, deliver to the Representatives copies of annual reports
and copies of all other documents, reports and information furnished
by the Company to its stockholders or filed with any securities
exchange pursuant to the requirements of such exchange or with the
Commission pursuant to the Act or the Exchange Act. The Company will
deliver to the Representatives similar reports with respect to
significant subsidiaries, as that term is defined in the Rules and
Regulations, which are not consolidated in the Company's financial
statements.
(h) No offering, sale, short sale or other disposition of any
shares of Common Stock of the Company or other securities convertible
into or exchangeable or exercisable for shares of Common Stock or
derivative of Common Stock (or agreement for such) will be made for a
period of 180 days after the date of the Prospectus, directly or
indirectly, by the Company otherwise than hereunder or with the prior
written consent of Deutsche Bank Securities, Inc.. The Company will
list, subject to notice of issuance, the Shares on the New York Stock
Exchange.
(i) Each executive officer, director and stockholder of the
Company immediately prior to the Company's initial public offering
have furnished to you, on or prior to the date of this Agreement, a
letter or letters, in form and substance satisfactory to the
Underwriters, pursuant to which each such person has agreed not to
offer, sell, sell short or otherwise dispose of any shares of Common
Stock of the Company owned by such person (or as to which such person
has the right to direct the disposition of) or request the
registration for the offer or sale of any of the foregoing until
________ __, 200__, directly or indirectly, except with the prior
written consent of Deutsche Bank Securities, Inc.
("Lock-up Agreements").
(j) The Company shall apply the net proceeds of its sale of
the Shares as set forth in the Prospectus and shall file such reports
with the Commission with respect to the sale of the Shares and the
application of the proceeds therefrom as may be required in accordance
with Rule 463 under the Act.
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(k) The Company shall not invest, or otherwise use, the
proceeds received by the Company from its sale of the Shares in such a
manner as would require the Company or any of the Subsidiaries to
register as an investment company under the 1940 Act.
(l) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a
registrar for the Common Stock.
(m) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or
might reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company.
(n) The Company has not distributed and prior to the later of
(i) the Closing Date and (ii) the completion of the distribution of
the Shares, will not distribute any offering material in connection
with the offering and sale of the Shares other than the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, any documents
incorporated by reference in the Registration Statement, and any other
materials, if any permitted by the Act.
6. Covenants of the Selling Security Holders.
Each Selling Security Holder covenants and agrees with the
Underwriters to:
(a) Pay or to cause to be paid all transfer taxes payable in
connection with the transfer of the Shares by such Selling Security
Holder to the Underwriters.
(b) Do and perform all things to be done and performed by
such Selling Security Holder under this Agreement prior to the Closing
Date and to satisfy all conditions precedent to the delivery of the
Share to be sold by such Selling Security Holder pursuant to this
Agreement.
7. Costs and Expenses.
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Company under this Agreement, including,
without limiting the generality of the foregoing, the following: accounting
fees of the Company; the fees and disbursements of counsel for the Company; the
cost of printing and delivering to, or as requested by, the Underwriters copies
of the Registration Statement, Preliminary Prospectuses, the Prospectus, and
this Agreement; the Underwriters' Selling Memorandum and the Underwriters'
Invitation Letter; the fees of the Commission; the filing fee of the NASD;
transfer agent and registrar fees and expenses; and the Listing Fee of The New
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York Stock Exchange. The Company shall not, however, be required to pay for any
of the Underwriters' expenses (other than those related to qualification under
NASD regulations) except that, if this Agreement shall not be consummated
because the conditions in Section 8 hereof are not satisfied, or because this
Agreement is terminated by the Representatives pursuant to Section 13 hereof,
or by reason of any failure, refusal or inability on the part of the Company to
perform any undertaking or satisfy any condition of this Agreement or to comply
with any of the terms hereof on its part to be performed, unless such failure
to satisfy said condition or to comply with said terms be due to the default or
omission of any Underwriter, then the Company shall reimburse the several
Underwriters for reasonable out-of-pocket expenses, including fees and
disbursements of counsel consisting of one firm only, reasonably incurred in
connection with investigating, marketing and proposing to market the Shares or
in contemplation of performing their obligations hereunder; but the Company
shall not in any event be liable to any of the several Underwriters for damages
on account of loss of anticipated profits from the sale by them of the Shares.
8. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters to purchase the Firm
Shares on the Closing Date and the Option Shares, if any, on the Option Closing
Date are subject to the accuracy, as of the Closing Date or the Option Closing
Date, as the case may be, of the representations and warranties of the Company
contained herein, and to the performance by the Company of its covenants and
obligations hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective and any and all filings
required by Rule 424 and Rule 430A of the Rules and Regulations shall
have been made, and any request of the Commission for additional
information (to be included in the Registration Statement or
otherwise) shall have been disclosed to the Representatives and
complied with to the reasonable satisfaction of the Commission's
staff. No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been taken or, to the
knowledge of the Company, shall be contemplated by the Commission and
no injunction, restraining order, or order of any nature by a federal
or state court of competent jurisdiction shall have been issued as of
the Closing Date, which would prevent the issuance of the Shares.
(b) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinion of
Akerman Senterfitt & ▇▇▇▇▇▇, P.A., counsel for the Company, dated the
Closing Date or the Option Closing Date, as the case may be, addressed
to the Underwriters (and stating that it may be relied upon by counsel
to the Underwriters) to the effect that:
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(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, with corporate power and
authority to own or lease its properties and conduct its
business as described in the Registration Statement; each of
Company's Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with corporate
power and authority to own or lease its properties and
conduct its business; the Company and each of its
Subsidiaries is duly qualified to transact business in all
jurisdictions in which the conduct of their business requires
such qualification, or in which the failure to qualify would
have a materially adverse effect upon the business of the
Company and its Subsidiaries taken as a whole; and, the
outstanding shares of capital stock of each of the Company's
Subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable and are owned, directly or
indirectly, by the Company free and clear of all liens,
claims and encumbrances, except as described in the
Registration Statement; and, to such counsel's knowledge, no
options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any
obligations into any shares of capital stock of or other
ownership interests in any of the Company's Subsidiaries are
outstanding.
(ii) The Company has authorized and outstanding
capital stock as set forth under the caption "Capitalization"
in the Prospectus; the outstanding shares of the Company's
Common Stock have been duly authorized and validly issued and
are fully paid and non-assessable; all of the Shares conform
to the description thereof contained in the Prospectus; the
certificates for the Shares, are in the form required by
Florida law; the Firm Shares and Option Shares, if any, to be
sold by the Company pursuant to this Agreement have been duly
authorized and will be validly issued, fully paid and
non-assessable when issued and paid for as contemplated by
this Agreement with no personal liability attaching to the
ownership thereof; and no statutory or, to the best of such
counsel's knowledge, contractual preemptive rights of
stockholders exist with respect to any of the Shares or the
issue or sale thereof. Upon payment of the exercise price of
the Warrant Shares in accordance with the terms of the
Warrants you will receive fully paid, nonassessable shares of
Common Stock. Upon the payment of the initial offering price
to the public as set forth in the Prospectus to the Selling
Stockholders you will receive good and valid title to such
shares of common stock, free and clear of any claims, liens
or other encumbrances.
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(iii) Except as described in or contemplated by the
Prospectus, to such counsel's knowledge, there are no
outstanding securities of the Company convertible or
exchangeable into or evidencing the right to purchase or
subscribe for any shares of capital stock of the Company and
there are no outstanding or authorized options, warrants or
rights of any character obligating the Company to issue any
shares of its capital stock or any securities convertible or
exchangeable into or evidencing the right to purchase or
subscribe for any shares of such stock; and except as
described in the Prospectus to such counsel's knowledge, no
holder of any securities of the Company or any other person
has the right, contractual or otherwise, which has not been
satisfied or effectively waived, to cause the Company to sell
or otherwise issue to them, or to permit them to underwrite
the sale of, any of the Shares or the right to have any
shares of Common Stock or other securities of the Company
included in the Registration Statement or the right, as a
result of the filing of the Registration Statement, to
require registration under the Act of any shares of Common
Stock or other securities of the Company.
(iv) The Registration Statement has become effective
under the Act and, to such counsel's knowledge, no stop order
proceedings with respect thereto have been instituted or are
pending or threatened under the Act.
(v) The Registration Statement, the Prospectus and
each amendment or supplement thereto comply as to form in all
material respects with the requirements of the Act and the
applicable rules and regulations thereunder (except that such
counsel need express no opinion as to the financial
statements, notes thereto and related schedules and other
financial and statistical information included therein or any
information furnished by the Underwriters for use therein).
(vi) The statements under the captions
"Business-Employees," "Management-Executive Compensation,"
"Management-Executive Employment Agreements,"
"Management-Stock Option Plan," "Certain Transactions,"
"Description of Capital Stock" and "Shares Eligible for
Future Sale" in the Prospectus, insofar as such statements
constitute a summary of documents referred to therein or
matters of law, fairly summarize in all material respects the
information called for with respect to such documents and
matters.
(vii) To such counsel's knowledge, there are no
contracts or documents required to be filed as exhibits to
the Registration Statement or described in the Registration
Statement or the Prospectus which are not so filed or
described as required, and such contracts and documents as
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are summarized in the Registration Statement or the
Prospectus are fairly summarized in all material respects.
(viii) To such counsel's knowledge, there are no
material legal or governmental proceedings pending or
threatened against the Company or any of its Subsidiaries
except as set forth in the Prospectus.
(ix) The execution and delivery of this Agreement
and the consummation of the transactions herein contemplated
do not and will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default
under, the Charter or By-Laws of the Company, or, any
material agreement or instrument to which the Company or any
of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries may be bound that was filed as an exhibit
to the Registration Statement.
(x) This Agreement has been duly authorized,
executed and delivered by the Company and by, or on behalf
of, each of the Selling Security Holders.
(xi) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body is necessary in
connection with the execution and delivery of this Agreement
and the consummation of the transactions herein contemplated
by the Company or the Selling Security Holders.
(xii) The Company is not, and will not become, as a
result of the consummation of the transactions contemplated
by this Agreement, and application of the net proceeds
therefrom as described in the Prospectus, required to
register as an investment company under the 1940 Act.
In rendering such opinion, Akerman, Senterfitt and ▇▇▇▇▇▇,
P.A. may provide that its opinion is limited to matters governed by
the laws of Florida and the General Corporation Law of the State of
Delaware and the Federal securities laws of the United States. In
addition to the matters set forth above, the opinion of Akerman,
Senterfitt and ▇▇▇▇▇▇, P.A. shall also include a statement to the
effect that. Although counsel has not undertaken, except as otherwise
indicated in their opinion, to determine independently, and does not
assume any responsibility for, the accuracy or completeness of the
statements in the Registration Statement, such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussions of the contents thereof,
and nothing has come to the attention of such counsel which leads them
to believe that (i) the Registration Statement, at the time it became
effective under the Act (but after giving effect to any modifications
incorporated therein pursuant to Rule 430A under the Act) and as of
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the Closing Date or the Option Closing Date, as the case may be,
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, and (ii) the Prospectus, or any
supplement thereto, on the date it was filed pursuant to the Rules and
Regulations and as of the Closing Date or the Option 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, in the light of the circumstances under which they are
made, not misleading (except that such counsel need express no view as
to financial statements, schedules and statistical information
therein).
(c) The Representatives shall have received from White & Case
LLP, counsel for the Underwriters, an opinion dated the Closing Date
or the Option Closing Date, as the case may be, substantially to the
effect specified in subparagraphs (ii), (iii), (iv) and (x) of
Paragraph (b) of this Section 8, and that the Company is a duly
organized and validly existing corporation under the laws of the State
of Florida. In rendering such opinion, White & Case LLP may rely as to
the matters relating to the laws of the States other than Florida or
Federal laws on the opinions of counsel referred to in Paragraph (b)
of this Section 6. In addition to the matters set forth above, such
opinion shall also include a statement to the effect that nothing has
come to the attention of such counsel which leads them to believe that
(i) the Registration Statement, or any amendment thereto, as of the
time it became effective under the Act (but after giving effect to any
modifications incorporated therein pursuant to Rule 430A under the
Act) as of the Closing Date or the Option Closing Date, as the case
may be, 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, and (ii) the Prospectus,
or any supplement thereto, on the date it was filed pursuant to the
Rules and Regulations and as of the Closing Date or the Option 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, in the light of the circumstances under which they are
made, not misleading (except that such counsel need express no view as
to financial statements, schedules and statistical information
therein). With respect to such statement, White & Case LLP may state
that their belief is based upon the procedures set forth therein, but
is without independent check and verification.
(d) You shall have received, on the date hereof, the Closing
Date and the Option Closing Date, as the case may be, a letter dated
the date hereof, the Closing Date or the Option Closing Date, as the
case may be, in form and substance satisfactory to you, of
PricewaterhouseCoopers LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating that, in their opinion,
the financial statements and schedules of the Company and its
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Subsidiaries examined by them and included in the Registration
Statement comply in form in all material respects with the applicable
accounting requirements of the Act and the related published Rules and
Regulations; and containing such other statements and information as
is ordinarily included in accountants' "comfort letters" to
Underwriters with respect to such financial statements and certain
financial and statistical information contained in the Registration
Statement and Prospectus.
(e) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a certificate or
certificates of the Company and signed by the Chief Executive Officer
and the Chief Financial Officer of the Company to the effect that, as
of the Closing Date or the Option Closing Date, as the case may be,
each of them severally represents as follows:
(i) The Registration Statement has become effective
under the Act and to their knowledge no stop order suspending
the effectiveness of the Registration Statement has been
issued, and to their knowledge no proceedings for such
purpose have been taken or are contemplated by the
Commission;
(ii) The representations and warranties of the
Company contained in Section 1 hereof are true and correct as
of the Closing Date or the Option Closing Date, as the case
may be;
(iii) All filings required to have been made
pursuant to Rules 424 or 430A under the Act have been made;
(iv) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion, as of the
effective date of the Registration Statement, the statements
contained in the Registration Statement were true and correct
and such Registration Statement and Prospectus did not omit
to state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading, and since the effective date of the Registration
Statement, no event has occurred which should have been set
forth in a supplement to or an amendment of the Prospectus
which has not been so set forth in such supplement or
amendment; and
(v) Since the respective dates as of which
information is given in the Registration Statement and
Prospectus, there has not been any Material Adverse Effect or
any development involving a prospective Material Adverse
Effect, whether or not arising in the ordinary course of
business.
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(f) The Company shall have furnished to the Representatives
such further certificates and documents confirming the representations
and warranties, covenants and conditions contained herein and related
matters as the Representatives may reasonably have requested.
(g) The Firm Shares and Option Shares, if any, shall have
been approved for listing upon notice of issuance on The New York
Stock Exchange.
(h) The Lock-up Agreements described in Section 4(i) shall be
in full force and effect.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects reasonably satisfactory to the Representatives and to White &
Case LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Representatives by notifying the Company of such termination in writing or
by telegram at or prior to the Closing Date or the Option Closing Date, as the
case may be.
In such event, the Company and the Underwriters shall not be under any
obligation to each other (except to the extent provided in Sections 7 and 10
hereof).
9. Conditions of the Obligations of the Sellers.
The obligations of the Sellers to sell and deliver the portion of the
Shares required to be delivered as and when specified in this Agreement are
subject to the conditions that at the Closing Date or the Option Closing Date,
as the case may be, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
10. Indemnification.
(a) The Sellers, severally and not jointly, agree to
indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of the Act, against
any losses, claims, damages or liabilities to which such Underwriter
or any such controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto or
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
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therein not misleading; and will reimburse each Underwriter and each
such controlling person upon demand for any legal or other expenses
reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending any such loss, claim,
damage or liability, action or proceeding or in responding to a
subpoena or governmental inquiry related to the offering of the
Shares, whether or not such Underwriter or controlling person is a
party to any action or proceeding; provided, however, that the Sellers
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by or
through the Representatives specifically for use in the preparation
thereof. This indemnity agreement will be in addition to any liability
which the Sellers may otherwise have.
(b) Each Underwriter severally and not jointly will indemnify
and hold harmless the Selling Security Holders and the Company, each
of its directors, each of its officers who has signed the Registration
Statement, and each person, if any, who controls the Company within
the meaning of the Act against any losses, claims, damages or
liabilities to which the Company or any such director, officer, or
controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus,
the Prospectus or any amendment or supplement thereto or (ii) the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made; and will reimburse any legal or other expenses
reasonably incurred by the Selling Security Holders and the Company or
any such director, officer, or controlling person in connection with
investigating or defending any such loss, claim, damage, liability,
action or proceeding; provided, however, that each Underwriter will be
liable in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission has been made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or such amendment or supplement, in
reliance upon and in conformity with written information furnished to
the Company by or through the Representatives specifically for use in
the preparation thereof. This indemnity agreement will be in addition
to any liability which such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
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which indemnity may be sought pursuant to this Section 8, such person
(the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in
writing. No indemnification provided for in Section 8(a) or (b) shall
be available to any party who shall fail to give notice as provided in
this Section 8(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and
was materially prejudiced by the failure to give such notice, but the
failure to give such notice shall not relieve the indemnifying party
or parties from any liability which it or they may have to the
indemnified party for contribution or otherwise than on account of the
provisions of Section 8(a) or (b). In case any such proceeding shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party and shall pay as incurred the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred (or within 30 days of
presentation) the fees and expenses of the counsel retained by the
indemnified party in the event (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them or (iii) the indemnifying party shall have
failed to assume the defense and employ counsel acceptable to the
indemnified party within a reasonable period of time after notice of
commencement of the action. It is understood that the indemnifying
party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate firm for all such
indemnified parties. Such firm shall be designated in writing by you
in the case of parties indemnified pursuant to Section 10(a) and by
the Sellers in the case of parties indemnified pursuant to Section
10(b). The indemnifying party shall not be liable for any settlement
of any proceeding effected without its 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 from
and against any loss or liability by reason of such settlement or
judgment. In addition, the indemnifying party will not, without the
prior written consent of the indemnified party, settle or compromise
or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding of which indemnification may be sought
hereunder (whether or not any indemnified party is an actual or
potential party to such claim, action or proceeding) unless such
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settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action or proceeding.
(d) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party
under Section 10(a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof)
referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Sellers on the one hand and the
Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Sellers on the one hand
and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities, (or actions or proceedings in respect thereof), as well
as any other relevant equitable considerations. The relative benefits
received by the Sellers on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Sellers bears to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Sellers on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Sellers and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 10(d)
were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this Section 10(d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
above in this Section 10(d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), (i) no
Underwriter shall be required to contribute any amount in excess of
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the underwriting discounts and commissions applicable to the Shares
purchased by such Underwriter and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations in
this Section 10(d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or
amendment thereto, each party against whom contribution may be sought
under this Section 10 hereby consents to the jurisdiction of any court
having jurisdiction over any other contributing party, agrees that
process issuing from such court may be served upon him, her or it by
any other contributing party and consents to the service of such
process and agrees that any other contributing party may join him, her
or it as an additional defendant in any such proceeding in which such
other contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or
contribution under this Section 8 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 8 and the representations and
warranties of the Sellers set forth in this Agreement shall remain
operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Selling Security Holders and the
Company, its directors or officers or any persons controlling the
Company, (ii) acceptance of any Shares and payment therefor hereunder,
and (iii) any termination of this Agreement. A successor to any
Underwriter, or to the Company, its directors or officers, or any
person controlling the Company, shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in
this Section 10.
11. Default by Underwriters.
If on the Closing Date or the Option Closing Date, as the case may be,
any Underwriter shall fail to purchase and pay for any portion of the Shares
which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the Sellers), you, as
Representatives of the Underwriters, shall use your reasonable efforts to
procure within [36] hours thereafter one or more of the other Underwriters, or
any others, to purchase from the Sellers such amounts as may be agreed upon and
upon the terms set forth herein, the Firm Shares or Option Shares, as the case
may be, which the defaulting Underwriter failed to purchase. If during such
[36] hours, you, as such Representatives, shall not have procured such other
Underwriters, or any others, to purchase the Firm Shares or Option Shares, as
the case may be, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of shares with respect to which
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such default shall occur does not exceed [10%] of the Firm Shares or Option
Shares, as the case may be, covered hereby, the other Underwriters shall be
obligated, severally, in proportion to the respective numbers of Firm Shares or
Option Shares, as the case may be, which they are obligated to purchase
hereunder, to purchase the Firm Shares or Option Shares, as the case may be,
which such defaulting Underwriter or Underwriters failed to purchase or (b) if
the aggregate number of Firm Shares or Option Shares, as the case may be, with
respect to which such default shall occur exceeds [10%] of the Firm Shares or
Option Shares, as the case may be, covered hereby, the Sellers or you, as the
Representatives of the Underwriters, will have the right, by written notice
given within the next [36]-hour period to the parties to this Agreement, to
terminate this Agreement without liability on the part of the non-defaulting
Underwriters or of the Sellers except to the extent provided in Section 10
hereof. In the event of a default by any Underwriter or Underwriters, as set
forth in this Section 11, the Closing Date or Option Closing Date, as the case
may be, may be postponed for such period, not exceeding [7] days, you, as the
Representatives of the Underwriters, may determine in order that the required
changes in the Registration Statement or in the Prospectus or in any other
documents or arrangements may be effected. The term "Underwriter" includes any
person substituted for a defaulting Underwriter. Any action taken under this
Section 11 shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
12. Notices.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or telegraphed
and confirmed as follows: if to the Underwriters, to Deutsche Bank Securities,
Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Worthing ▇.
▇▇▇▇▇▇▇, Principal, with a copy to White & Case LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.; and if to the Company, to
Orius Corp., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Executive Officer, with copies to
Akerman, Senterfitt & ▇▇▇▇▇▇, P.A., ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
13. Termination.
This Agreement may be terminated by you by notice to the Sellers as
follows:
(a) at any time prior to the Closing Date if any of the
following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
any material adverse change or any development involving a prospective
material adverse change in or affecting the condition, financial or
otherwise, of the Company and its Subsidiaries taken as a whole or the
earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the
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Company and its Subsidiaries taken as a whole, whether or not arising
in the ordinary course of business; (ii) any outbreak or escalation of
hostilities or declaration of war or national emergency or other
national or international calamity or crisis or change in economic or
political conditions if the effect of such outbreak, escalation,
declaration, emergency, calamity, crisis or change on the financial
markets of the United States would, in your reasonable judgment, make
it impracticable to market the Shares or to enforce contracts for the
sale of the Shares; (iii) trading generally shall have been suspended
or materially limited on or by, as the case may be, any of the New
York Stock Exchange, American Stock Exchange or the NASDAQ Stock
Market or limitation on prices (other than limitations on hours or
numbers of days of trading); (iv) the enactment, publication, decree
or other promulgation of any statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially
and adversely affects or may materially and adversely affect the
business or operations of the Company; (v) declaration of a banking
moratorium by United States or New York State authorities; (vi) the
suspension of trading of the Company's Common Stock by the Commission
on The New York Stock Exchange; or (vii) the taking of any action by
any governmental body or agency in respect of its monetary or fiscal
affairs which in your reasonable opinion has a material adverse effect
on the securities markets in the United States; or
(b) as provided in Sections 8 and 11 of this Agreement.
14. Successors.
This Agreement has been and is made solely for the benefit of the
Underwriters, the Selling Security Holders and the Company and their respective
successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will
have any right or obligation hereunder. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign merely because of such
purchase.
15. Information Provided by Underwriters.
The Company and the Underwriters acknowledge and agree that the only
information furnished or to be furnished by any Underwriter to the Company for
inclusion in any Prospectus or the Registration Statement consists of the
legends required by Item 502(d) of Regulation S-K under the Act and the
information under the caption "Plan of Distribution" in the Prospectus.
16. Miscellaneous.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations and covenants in this
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Agreement shall remain in full force and effect, regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of
any Underwriter or controlling person thereof, or by or on behalf of the
Company or its directors or officers and (c) delivery of and payment for the
Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
If the foregoing letter is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a
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binding agreement among the Company, the Selling Security Holders and
the Underwriters in accordance with its terms.
Very truly yours,
ORIUS CORP.
By:
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Chief Executive Officer
THE SELLING SECURITY HOLDERS
NAMED IN SCHEDULE II HERETO,
ACTING SEVERALLY
By:
-------------------------------
Attorney-in-fact
The foregoing Underwriting Agreement
is hereby confirmed and accepted on
behalf of themselves and the other
secured Underwriters as of the date
first above written.
Deutsche Bank Securities, Inc.
Banc of America Securities LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company
As Representatives of the
Several Underwriters
By: Deutsche Bank Securities, Inc.
By:
--------------------------------
Authorized Officer
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SCHEDULE I
Schedule of Underwriters
Number of
Firm Shares
Underwriter to be Purchased
----------- ---------------
Deutsche Bank Securities, Inc.............................
Banc of America Securities LLC............................
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc..............................
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company.............................
Total
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SCHEDULE II
Schedule of Selling Security Holders
Number of
Warrant Shares
Number of Underlying
Firm Shares Warrants
Shareholder to be Sold to be Sold
----------- ----------- --------------
Total
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