EXHIBIT 1.1
6,700,000 SHARES
▇▇▇▇ CORP.
CLASS A COMMON STOCK (PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
____________________, 1998
________________________, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
BT Alex. ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
c/o Morgan ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Dear Sirs and Mesdames:
▇▇▇▇ CORP., a Delaware corporation (the "COMPANY"), proposes
to issue and sell to the several Underwriters (as defined below) 6,700,000
shares of its Class A Common Stock, par value $.01 per share (the "FIRM
SHARES").
It is understood that, subject to the conditions hereinafter
stated, 5,360,000 Firm Shares (the "U.S. FIRM SHARES") will be sold to the
several U.S. Underwriters named in Schedule II hereto (the "U.S. UNDERWRITERS")
in connection with the offering and sale of such U.S. Firm Shares in the United
States and Canada to United States and Canadian Persons (as such terms are
defined in the Agreement Between U.S. and International Underwriters of even
date herewith), and 1,340,000 Firm Shares (the "INTERNATIONAL SHARES") will be
sold to the several International Underwriters named in Schedule III hereto (the
"INTERNATIONAL UNDERWRITERS") in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, BT Alex.
▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation shall
act as representatives (the "U.S. REPRESENTATIVES") of the several U.S.
Underwriters, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited shall act as
representative (the "INTERNATIONAL REPRESENTATIVE") of the several International
Underwriters. The U.S. Underwriters and the International Underwriters are
hereinafter collectively referred to as the Underwriters.
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The Company also proposes to issue and sell to the several
U.S. Underwriters not more than an additional 1,005,000 shares of its Class A
Common Stock, par value $.01 per share (the "ADDITIONAL Shares") if and to the
extent that the U.S. Representatives shall have determined to exercise, on
behalf of the U.S. Underwriters, the right to purchase such shares of common
stock granted to the U.S. Underwriters in Section 2 hereof. The Firm Shares and
the Additional Shares are hereinafter collectively referred to as the "SHARES."
The shares of Class A Common Stock, par value $.01 per share, of the Company to
be outstanding after giving effect to the sales contemplated hereby are
hereinafter referred to as the "COMMON STOCK."
The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement relating to the Shares.
The registration statement contains two prospectuses to be used in connection
with the offering and sale of the Shares: the U.S. prospectus, to be used in
connection with the offering and sale of Shares in the United States and Canada
to United States and Canadian Persons, and the international prospectus, to be
used in connection with the offering and sale of Shares outside the United
States and Canada to persons other than United States and Canadian Persons. The
international prospectus is identical to the U.S. prospectus except for the
outside front cover page. The registration statement as amended at the time it
becomes effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares are hereinafter collectively referred to as the "PROSPECTUS." If the
Company has filed an abbreviated registration statement to register additional
shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the
"RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term
"REGISTRATION STATEMENT" shall be deemed to include such Rule 462 Registration
Statement.
As part of the offering contemplated by this Agreement,
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation ("DLJ") has agreed to
reserve out of the Shares set forth opposite its name on Schedule II to this
Agreement up to shares, for sale to the Company's employees, officers and
directors and other parties associated with the Company (collectively,
"PARTICIPANTS"), as set forth in the Prospectus under the heading "Underwriting"
(the "DIRECTED SHARE
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PROGRAM"). The Shares to be sold by DLJ pursuant to the Directed Share Program
(the "DIRECTED SHARES") will be sold by DLJ pursuant to this Agreement at the
public offering price. Any Directed Shares not orally confirmed for purchase by
any Participants by the end of the business day on which this Agreement is
executed will be offered to the public by DLJ as set forth in the Prospectus.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to and
agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar rights.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(d) (i) The Registration Statement, when it became effective, did
not contain and, as amended or supplemented, if applicable, 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, (ii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iii)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or
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omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
expressly for use therein.
(e) As of the Closing Date, the Company will have the authorized,
issued and outstanding capitalization set forth in the Prospectus; all
of the subsidiaries of the Company are listed in Schedule I attached
hereto (each, a "SUBSIDIARY" and collectively, the "SUBSIDIARIES"); all
of the shares of capital stock of the Company and the Subsidiaries
outstanding prior to the issuance of the Shares have been, and as of
the Closing Date will be, duly authorized and validly issued, are fully
paid and nonassessable and were not issued in violation of any
preemptive or similar rights; except for (i) liens under the New Credit
Facility and (ii) restrictions on transferability under the Amended and
Restated Stockholders' Agreement, all of the outstanding shares of
capital stock of the Subsidiaries are owned, directly or indirectly, by
the Company, free and clear of all liens, encumbrances, equities and
claims or restrictions on transferability (other than those imposed by
the Act and the securities or "Blue Sky" laws of certain jurisdictions)
or voting; except as set forth in the Prospectus and other than options
to purchase shares pursuant to the Stock Incentive Plan, there
are no (i) options, warrants or other rights to purchase, (ii)
agreements or other obligations to issue or (iii) other rights to
convert any obligation into, or exchange any securities for, shares of
capital stock of or ownership interests in the Company or any of the
Subsidiaries outstanding. Except for the Subsidiaries or as disclosed
in the Prospectus, the Company does not own, directly or indirectly,
any shares of capital stock or any other equity or long-term debt
securities or have any equity interest in any firm, partnership, joint
venture or other entity.
(f) Each of the Company and the Subsidiaries is duly incorporated,
validly existing and in good standing under the laws of its respective
jurisdiction of incorporation and has all requisite corporate power and
authority to own its properties and conduct its business as now
conducted and as described in the Prospectus; each of the Company and
the Subsidiaries is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions where the
ownership or leasing of its properties or the conduct of its business
requires such qualifica-
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tion, except where the failure to be so qualified would not,
individually or in the aggregate, have a material adverse effect on the
general affairs, management, business, condition (financial or
otherwise) or results of operations of the Company and the
Subsidiaries, taken as a whole (any such event, a "MATERIAL ADVERSE
EFFECT").
(g) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and
to consummate the transactions contemplated hereby. This Agreement and
the consummation by the Company of the transactions contemplated hereby
have been duly and validly authorized by the Company. This Agreement
has been duly executed and delivered by the Company.
(h) No consent, approval, authorization or order of any court or
governmental agency or body, or third party is required for the
issuance and sale by the Company of the Shares to the Underwriters or
the consummation by the Company of the other transactions contemplated
hereby, except such as have been obtained and such as may be required
under state securities or "Blue Sky" laws in connection with the
purchase and resale of the Shares by the Underwriters. None of the
Company or the Subsidiaries is (i) in violation of its certificate of
incorporation or bylaws (or similar organizational document), (ii) in
breach or violation of any statute, judgment, decree, order, rule or
regulation applicable to any of them or any of their respective
properties or assets, except for any such breach or violation that
would not, individually or in the aggregate, have a Material Adverse
Effect, or (iii) in breach of or default under (nor has any event
occurred that, with notice or passage of time or both, would constitute
a default under) or in violation of any of the terms or provisions of
any contract listed on Schedule 1(h) hereto (collectively, the
"CONTRACTS"), except for any such breach, default, violation
or event that would not, individually or in the aggregate, have a
Material Adverse Effect.
(i) The execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the transactions
contemplated hereby (including, without limitation, the issuance and
sale of the Shares to the Underwriters) will not conflict with or
constitute or result in a breach of or a default under (or an event
that with notice or passage of time or both would constitute a
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default under) or violation of any of (i) the terms or provisions of
any Contract, except for any such conflict, breach, violation, default
or event that would not, individually or in the aggregate, have a
Material Adverse Effect, (ii) the certificate of incorporation or
bylaws (or similar organizational document) of the Company or any of
the Subsidiaries or (iii) (assuming compliance with all applicable
state securities or "Blue Sky" laws) any statute, judgment, decree,
order, rule or regulation applicable to the Company or any of the
Subsidiaries or any of their respective properties or assets, except
for any such conflict, breach or violation that would not, individually
or in the aggregate, have a Material Adverse Effect.
(j) The audited consolidated financial statements and the Notes
thereto of the Company and the Subsidiaries included in the Prospectus
present fairly in all material respects the financial position, results
of operations and cash flows of the Company and the Subsidiaries at the
dates and for the periods to which they relate and have been prepared
in accordance with generally accepted accounting principles applied on
a consistent basis, except as otherwise stated therein. The summary and
selected financial and statistical data in the Prospectus present
fairly in all material respects the information shown therein and have
been prepared and compiled on a basis consistent with the audited
financial statements included therein, except as otherwise stated
therein. Deloitte & Touche LLP (the "INDEPENDENT ACCOUNTANTS") is an
independent public accounting firm within the meaning of the Securities
Act and the rules and regulations promulgated thereunder.
(k) The pro forma financial statements (including the notes thereto)
and the other pro forma financial information included in the
Prospectus (i) comply as to form in all material respects with the
applicable requirements of Regulation S-X promulgated under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), (ii)
have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and (iii)
have been properly computed on the bases described therein; the
assumptions used in the preparation of the pro forma financial data and
other pro forma financial information included in Prospectus are
reasonable and the adjustments used therein are appropri-
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ate to give effect to the transactions or circumstances referred to
therein.
(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and the Subsidiaries, taken as a whole.
(m) There is not pending or, to the knowledge of the Company,
threatened any action, suit, proceeding, inquiry or investigation to
which the Company or any of the Subsidiaries is a party, or to which
the property or assets of the Company or any of the Subsidiaries are
subject, before or brought by any court, arbitrator or governmental
agency or body that, (i) would be required to be described in a
prospectus pursuant to the Securities Act that are not described in the
Registration Statement or the Prospectus, or (ii) if determined
adversely to the Company or any of the Subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect or
that seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge the issuance or sale of the Shares to be sold
hereunder or the consummation of the other transactions described in
the Prospectus. Furthermore, there are no material contracts or other
documents that would be required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to a
Registration Statement pursuant to the Securities Act that are not
described or filed as required.
(n) Each of the Company and the Subsidiaries possesses all licenses,
permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals,
presently required or necessary to own or lease, as the case may be,
and to operate its respective properties and to carry on its respective
businesses as now or proposed to be conducted as set forth in the
Prospectus ("PERMITS"), except where the failure to obtain such -------
Permits would not, individually or in the aggregate, have a Material
Adverse Effect; each of the Company and the Subsidiaries has fulfilled
and performed all of its obligations with respect to such Permits and,
to the knowledge of the Company or any of the Subsidiaries, no event
has occurred that would reasonably be expected to allow, or
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after notice or lapse of time would reasonably be expected to allow,
revocation or termination thereof or result in any other material
impairment of the rights of the holder of any such Permit, except where
such revocation or termination would not, individually or in the
aggregate, have a Material Adverse Effect; and none of the Company or
the Subsidiaries has received any notice of any proceeding relating to
revocation or modification of any such Permit, except where such
revocation or modification would not, individually or in the aggregate,
have a Material Adverse Effect.
(o) Since the date of the most recent financial statements
appearing in the Prospectus, except as described therein, (i) none of
the Company or the Subsidiaries has incurred any material liabilities
or obligations, direct or contingent, or entered into or agreed to
enter into any material transactions or contracts (written or oral) not
in the ordinary course of business, which liabilities, obligations,
transactions or contracts would, individually or in the aggregate, be
material to the general affairs, management, business, condition
(financial or otherwise), prospects or results of operations of the
Company and the Subsidiaries, taken as a whole, (ii) none of the
Company or the Subsidiaries has purchased any of its outstanding
capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock (other than with respect
to any of such Subsidiaries, the purchase of, or dividend or
distribution on, capital stock owned by the Company) and (iii) there
shall not have been any material change in the capital stock or
long-term indebtedness of the Company or the Subsidiaries.
(p) Each of the Company and the Subsidiaries has filed all necessary
federal, state and foreign income and franchise tax returns, except
where the failure to so file such returns would not, individually or in
the aggregate, have a Material Adverse Effect, and has paid all taxes
shown as due thereon; and other than tax deficiencies which the Company
or any Subsidiary is contesting in good faith and for which the Company
or such Subsidiary has provided adequate reserves, there is no tax
deficiency that has been asserted against the Company or any of the
Subsidiaries that would have, individually or in the aggregate, a
Material Adverse Effect.
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(q) The Shares will conform in all material respects to the
description as to legal matters thereof in the Prospectus.
(r) Each of the Company and the Subsidiaries has good and marketable
title to all real property and owns all personal property described in
the Prospectus as being owned by it and good and marketable title to a
leasehold estate in the real and personal property described in the
Prospectus as being leased by it free and clear of all liens, charges,
encumbrances or restrictions, except as described in the Prospectus or
as contemplated by the New Credit Facility or to the extent the failure
to have such title or ownership or the existence of such liens,
charges, encumbrances or restrictions would not, individually or in the
aggregate, have a Material Adverse Effect. All leases, contracts and
agreements to which the Company or any of the Subsidiaries is a party
or by which any of them is bound are valid and enforceable against the
Company or such Subsidiary, and are valid and enforceable against the
other party or parties thereto and are in full force and effect with
only such exceptions as would not, individually or in the aggregate,
have a Material Adverse Effect. The Company and the Subsidiaries own or
possess or can acquire adequate licenses or other rights to use all
patents, trademarks, service marks, trade names, copyrights and
know-how necessary (in any material respect) to conduct the businesses
now or proposed to be operated by them as described in the Prospectus,
and none of the Company or the Subsidiaries has received any notice of
infringement of or conflict with (or knows of any such infringement of
or conflict with) asserted rights of others with respect to any
patents, trademarks, service marks, trade names, copyrights or know-how
that, if such assertion of infringement or conflict were sustained,
would have a Material Adverse Effect.
(s) Except as would not, individually or in the aggregate, have a
Material Adverse Effect, and except as set forth on Schedule 1(l)
hereto (A) each of the Company and the Subsidiaries is in compliance
with and not subject to liability under applicable Environmental Laws
(as defined below), (B) each of the Company and the Subsidiaries has
made all filings and provided all notices required under applicable
Environmental Laws, and has and is in compliance with all Permits
required under any applicable Environmental Laws and each of them is in
full force and effect, (C) there is no civil, criminal or
administrative
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action, suit, demand, claim, hearing, notice of violation,
investigation, proceeding, notice or demand letter or request for
information pending or, to the knowledge of the Company or any of the
Subsidiaries, threatened, against the Company or any of the
Subsidiaries or, to the knowledge of the Company or any of the
Subsidiaries, any pending or threatened investigation involving the
Company or any of the Subsidiaries, under any Environmental Law, (D) no
lien, charge, encumbrance or restriction has been recorded under any
Environmental Law with respect to any assets, facility or property
owned, operated, leased or controlled by the Company or any of the
Subsidiaries, (E) none of the Company or the Subsidiaries has received
notice that it has been identified as a potentially responsible party
under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or any comparable state
law, (F) no property or facility of the Company or any of the
Subsidiaries is (i) listed or proposed for listing on the National
Priorities List under CERCLA or is (ii) listed on the Comprehensive
Environmental Response, Compensation, Liability Information System List
promulgated pursuant to CERCLA, or on any comparable list maintained by
any state or local governmental authority, in each of (i) and (ii),
including, without limitation, those relating to petroleum products,
derivatives, constituents and wastes.
For purposes of this Agreement, "ENVIRONMENTAL LAWS" means the
common law and all applicable federal, state and local laws or regulations,
codes, orders, decrees, judgments or injunctions issued, promulgated, approved
or entered thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials or substances, solid or hazardous wastes into the
environment (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), (ii) the manufacture, processing,
distribution, use, generation, treatment, storage, disposal, transport or
handling of hazardous materials or substances, solid or hazardous wastes, (iii)
underground and above ground storage tanks and related piping, and emissions,
discharges, releases or threatened releases therefrom and (iv) damages to
natural resources.
(t) There is no material strike, labor dispute, slowdown or work
stoppage with the employees of the Company or any of the Subsidiaries
which is pending or, to
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the knowledge of the Company or any of the Subsidiaries, threatened.
(u) Each of the Company and the Subsidiaries carries insurance in
such amounts and covering such risks as is prudent and customary in the
business in which it is engaged.
(v) Each of the Company and the Subsidiaries (i) makes and keeps
accurate books and records and (ii) maintains internal accounting
controls which provide reasonable assurance that (A) transactions are
executed in accordance with management's authorization, (B)
transactions are recorded as necessary to permit preparation of its
financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(w) None of the Company or the Subsidiaries will be an "investment
company" or "promoter" or "principal underwriter" for an "investment
company," as such terms are defined in the Investment Company Act of
1940, as amended, and the rules and regulations thereunder.
(x) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement.
(y) None of the Company or the Subsidiaries has taken, nor will any
of them 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 Shares.
Any certificate signed by any officer of the Company or any
Subsidiary and delivered to any Underwriter or to counsel for the Underwriters
shall be deemed a joint and several representation and warranty by the Company
and each of the Subsidiaries to each Underwriter as to the matters covered
thereby.
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2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees
to sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedules II and III
hereto opposite its name at U.S.$ a share ("PURCHASE PRICE").
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company agrees
to sell to the U.S. Underwriters the Additional Shares, and the U.S.
Underwriters shall have a one-time right to purchase, severally and not jointly,
up to 1,005,000 Additional Shares at the Purchase Price. If the U.S.
Representatives, on behalf of the U.S. Underwriters, elect to exercise such
option, the U.S. Representatives shall so notify the Company in writing not
later than 30 days after the date of this Agreement, which notice shall specify
the number of Additional Shares to be purchased by the U.S. Underwriters and the
date on which such shares are to be purchased. Such date may be the same as the
Closing Date but not earlier than the Closing Date nor later than ten business
days after the date of such notice. Additional Shares may be purchased as
provided in Section 4 hereof solely for the purpose of covering over-allotments
made in connection with the offering of the Firm Shares. If any Additional
Shares are to be purchased, each U.S. Underwriter agrees, severally and not
jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the U.S. Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of U.S. Firm Shares set forth in Schedule
II hereto opposite the name of such U.S. Underwriter bears to the total number
of U.S. Firm Shares.
The Company hereby agrees that, without the prior written
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not, during the
period ending 180 days after the date of the Prospectus, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock or (ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of the Common Stock, whether any such
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transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Shares to be sold hereunder, (B) the
issuance by the Company of shares of Common Stock upon the exercise of an option
or warrant or the conversion of a security outstanding on the date hereof or (C)
any other issuances of Common Stock or options or rights to acquire Common Stock
under the plans described in the Prospectus of which the Underwriters have been
advised in writing.
3. TERMS OF PUBLIC OFFERING. The Company is advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable. The Company is
further advised by you that the Shares are to be offered to the public initially
at U.S.$ a share (the "PUBLIC OFFERING PRICE") and to certain dealers selected
by you at a price that represents a concession not in excess of U.S.$ a share
under the Public Offering Price, and that any Underwriter may allow, and such
dealers may reallow, a concession, not in excess of U.S.$ a share, to any
Underwriter or to certain other dealers.
4. PAYMENT AND DELIVERY. Payment for the Firm Shares shall be
made to the Company in Federal or other funds immediately available in New York
City against delivery of such Firm Shares for the respective accounts of the
several Underwriters at 9:00 a.m., New York City time, on , 1998, or at such
other time on the same or such other date, not later than , 1998, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the "CLOSING DATE."
Payment for any Additional Shares shall be made to the Company
in Federal or other funds immediately available in New York City against
delivery of such Additional Shares for the respective accounts of the several
Underwriters at 9:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than , 1998, as shall be designated in writing
by the U.S. Representatives. The time and date of such payment are hereinafter
referred to as the "OPTION CLOSING DATE."
Certificates for the Firm Shares and Additional Shares shall
be in definitive form and registered in such names
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and in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Shares and Additional Shares
shall be delivered to you on the Closing Date or the Option Closing Date, as the
case may be, for the respective accounts of the several Underwriters, with any
transfer taxes payable in connection with the transfer of the Shares to the
Underwriters duly paid, against payment of the Purchase Price therefor.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The
obligations of the Company to sell the Shares to the Underwriters and the
several obligations of the Underwriters to purchase and pay for the Shares on
the Closing Date are subject to the condition that the Registration Statement
shall have become effective not later than 5:00 p.m. New York City time) on the
date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) 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 of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated
in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and
-15-
signed by an executive officer of the Company, to the effect
set forth in Section 5(a)(i) above and to the effect that the
representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and
that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Fried Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Company, dated the Closing Date, to the effect that:
(i) Each of the Company and the Subsidiaries is duly
incorporated, validly existing and in good standing under the
laws of its respective jurisdiction of incorporation and has
all requisite corporate power and authority to own its
properties and to conduct its business as described in the
Prospectus. Each of the Company and the Subsidiaries is duly
qualified to do business as a foreign corporation in good
standing in each of Florida, Georgia, Alabama, Mississippi,
North Carolina, South Carolina, Tennessee, Louisiana, Texas,
Oklahoma, Arizona, Nevada, Utah, California and Colarado.
(ii) The Company has the authorized, issued and
outstanding capitalization set forth in the Prospectus; all of
the outstanding shares of capital stock of the Company and the
Subsidiaries outstanding prior to the issuance of the Shares
have been duly authorized and validly issued, are fully paid
and nonassessable and were not issued in violation of any
preemptive or similar rights; except for (i) liens under the
New Credit Facility and (ii) restrictions on transferability
under the Amended and Restated Stockholders' Agreement, all of
the outstanding shares of capital stock of the Subsidiaries
are owned, directly or indirectly, by the Company, free and
clear of all perfected security interests and, to the
knowledge of such counsel, free and clear of all other liens,
encumbrances, equities and claims or restrictions on
transferability (other than those imposed by the Se-
-16-
curities Act and the securities or "Blue Sky" laws of certain
jurisdictions) or voting.
(iii) Except as set forth in the Prospectus and other than
options to purchase shares pursuant to the Stock Incentive
Plan (A) no options, warrants or other rights to purchase from
the Company or any Subsidiary shares of capital stock or
ownership interests in the Company or any Subsidiary are
outstanding, (B) no agreements or other obligations to issue,
or other rights to convert, any obligation into, or exchange
any securities for, shares of capital stock or ownership
interests in the Company or any Subsidiary are outstanding and
(C) no holder of securities of the Company or any Subsidiary
is entitled to have such securities registered with the Shares
under the Registration Statement.
(iv) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations
under this Agreement and to consummate the transactions
contemplated hereby; this Agreement and the consummation by
the Company of the transactions contemplated hereby have been
duly and validly authorized by the Company. This Agreement has
been duly executed and delivered by the Company.
(v) To the knowledge of such counsel no legal or
governmental proceedings are pending or, to the knowledge of
such counsel, threatened to which any of the Company or the
Subsidiaries is a party or to which the property or assets of
the Company or any Subsidiary is subject which, if determined
adversely to the Company or the Subsidiaries, would result,
individually or in the aggregate, in a Material Adverse
Effect, or which seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of
the Shares to be sold hereunder or the consummation of the
other transactions described in the Prospectus under the
caption "Use of Proceeds."
(vi) None of the Company or the Subsidiaries is in
violation of its certificate of incorporation or bylaws (or
similar organizational document).
(vii) The execution, delivery and performance of this
Agreement, and the consummation of the transac-
-17-
tions contemplated hereby (including, without limitation, the
issuance and sale of the Shares to the Underwriters) will not
conflict with or constitute or result in a breach or a default
under (or an event that with notice or passage of time or both
would constitute a default under) or violation of any of (i)
the terms or provisions of any Contract known to such counsel
(including in any event any of the foregoing that have been
filed by the Company with the Commission), except for any such
conflict, breach, violation, default or event that would not,
individually or in the aggregate, have a Material Adverse
Effect, (ii) the certificate of incorporation or bylaws (or
similar organizational document) of the Company or any of the
Subsidiaries or (iii) (assuming compliance with all applicable
state securities or "Blue Sky" laws) any statute, judgment,
decree, order, rule or regulation known to such counsel to be
applicable to the Company or any of the Subsidiaries or any of
their respective properties or assets, except for any such
conflict, breach or violation which would not, individually or
in the aggregate, have a Material Adverse Effect.
(viii) No consent, approval, authorization or order of any
governmental authority is required for the issuance and sale
by the Company of the Shares to the Underwriters or the
consummation by the Company of the other transactions
contemplated hereby, except such as may be required under Blue
Sky laws, as to which such counsel need express no opinion,
and those which have previously been obtained.
(ix) None of the Company or the Subsidiaries is, or
immediately after the sale of the Securities to be sold
hereunder and the application of the proceeds from such sale
(as described in the Prospectus under the caption "Use of
Proceeds") will be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(x) The Shares have been duly authorized and, when issued
and delivered in accordance with the terms of this Agreement,
will be validly issued, fully paid and nonassessable, and the
issuance of such Shares will not be subject to any preemptive
or similar rights.
-18-
(xi) The statements (A) in the Prospectus under the
captions "________," "_______," "Description of Capital Stock"
and "Underwriters" (to the extent of the description of this
Agreement) and (B) in the Registrat ion Statement in Items 14
and 15, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings
and fairly summarize the matters referred to therein.
(xii) In addition, in the course of the preparation by the
Company of the Registration Statement and the Prospectus, we
participated in conferences with certain of the officers and
representatives of, and the independent public accountants
for, the Company, at which the Registration Statement and the
Prospectus were discussed. Between the date of effectiveness
of the Registration Statement and the time of delivery of this
letter, we attended additional conferences with certain of the
officers and representatives of, and the independent public
accountants for, the Company, at which the contents of the
Prospectus were discussed to a limited extent. Given the
limitations inherent in the independent verification of
factual matters and the character of determinations involved
in the registration process, we are not passing upon or
assuming any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or the Prospectus, except insofar as such statements
relate to us and except to the extent set forth in the opinion
in paragraph (xi) above. Subject to the foregoing and on the
basis of the information gained in the performance of the
services referred to above, including information obtained
from officers and other representatives of, and the
independent public accountants for, the Company, no facts have
come to our attention that cause us to believe that the
Registration Statement, as of its effective date, contained
any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in
order to make the statements therein not misleading or that
the Prospectus as of its date contained any untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make
the
-19-
statements therein, in light of the circumstances under which
they were made, not misleading. We express no view or belief,
however, with respect to financial statements, schedules or
notes thereto or other financial data included in or omitted
from the Registration Statement or Prospectus. Also, subject
to the foregoing, no facts have come to our attention in the
course of proceedings described in the second sentence of this
paragraph that cause us to believe that the Prospectus, as of
the date and time of delivery of this letter contains an
untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances in which they were made, not misleading. We
express no view or belief, however, with respect to financial
statements, schedules or notes thereto or other financial and
statistical data included in or omitted from the Registration
Statement or Prospectus.
The opinion of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
described in this Section shall be rendered to the Underwriters at the request
of the Company and shall so state therein.
References to the Prospectus in this subsection (c) shall
include any amendment or supplement thereto prepared in accordance with the
provisions of this Agreement at the Closing Date.
(d) On the Closing Date, the Underwriters shall have received
the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters,
dated the Closing Date in form and substance satisfactory to the
Underwriters.
With respect to Section 5(c)(xii) above, Fried, Frank, Harris,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may state that its opinion and belief are based upon its
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification, except as
specified.
(e) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from
-▇▇-
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and Price Waterhouse & Co.,
independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus; PROVIDED that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(f) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and certain stockholders, officers and
directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities,
delivered to you on or before the date hereof, shall be in full force
and effect on the Closing Date.
(g) The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as they
may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Additional Shares
and other matters related to the issuance of the Additional Shares.
6. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, seven signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City,
without charge, prior to 10:00 a.m. New York City time on the business
day next succeeding the date of this Agreement and during the period
mentioned in Section 6(c) below, as many copies of the Prospectus and
any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the
Commission
-21-
within the applicable period specified in Rule 424(b) under the
Securities Act any prospectus required to be filed pursuant to such
Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition 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 reasonable opinion of counsel
for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you on
behalf of the Underwriters and to any other dealers upon request,
either 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) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security holders
and to you as soon as practicable an earning statement covering the
twelve-month period ending , 1999 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of
the Commission thereunder.
(f) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of its obligations under
this Agreement, including: (i) the fees, disbursements and expenses of
the Company's counsel and the Company's accountants in connection with
the registration and delivery of the Shares under the Securities Act
and all other fees or expenses in connection with the preparation and
filing of
-22-
the Registration Statement, any preliminary prospectus, the Prospectus
and amendments and supplements to any of the foregoing, including all
printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or Legal Investment memorandum in connection
with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for
offer and sale under state securities laws as provided in Section 6(d)
hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection with such qualification
and in connection with the Blue Sky or Legal Investment memorandum,
(iv) all filing fees and the reasonable fees and disbursements of
counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the National Association
of Securities Dealers, Inc. (the "NASD"), (v) all fees and expenses in
---- connection with the preparation and filing of the registration
statement on Form 8-A relating to the Common Stock and all costs and
expenses incident to listing the Shares on the [New York Stock
Exchange], (vi) the cost of printing certificates representing the
Shares, (vii) the costs and charges of any transfer agent, registrar or
depositary, (viii) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection with
the marketing of the offering of the Shares, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of
the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, with prior
approval of the Company (ix) all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Share
Program and stamp duties, similar taxes or duties or other taxes, if
any, incurred by the Underwriters in connection with the Directed Share
Program. and (x) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which
provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section
-23-
7 entitled "Indemnity and Contribution," and the last paragraph of
Section 9 below, the Underwriters will pay all of their costs and
expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
(g) In connection with the Directed Share Program, the Company will
ensure that the Directed Shares will be restricted to the extent
required by the NASD or the NASD rules from sale, transfer, assignment,
pledge or hypothecation for a period of three months following the date
of the effectiveness of the Registration Statement. DLJ will notify the
Company as to which Participants will need to be so restricted. The
Company will direct the transfer agent to place stop transfer
restrictions upon such securities for such period of time.
7. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein; PROVIDED, HOWEVER, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if 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
-24-
prior to the written confirmation of the sale of the Shares to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities, unless such failure
is the result of noncompliance by the Company with Section 6(a) hereof.
(b) In connection with the offer and sale of the Directed Shares,
the Company agrees, promptly upon a request in writing, to indemnify
and hold harmless DLJ from and against any and all losses, liabilities,
claims, damages and expenses incurred by DLJ as a result of (i) the
failure of eligible employees and other persons having a business
relationship with the Company to pay for and accept delivery of
Directed Shares which, by the end of the first business day following
the date of this Agreement, were subject to a properly confirmed
agreement to purchase, and (ii) any untrue statement or alleged untrue
statement of a material fact including in the supplement or prospectus
wrapper material distributed in ____________ in connection with the
reservation and sale of the Directed Shares to eligible employees and
other persons having a business relationship with the Company or the
omission or alleged omission therefrom of a material fact necessary to
make the statements therein, when considered in conjunction with the
Prospectus or any preliminary prospectus, not misleading.
(c) The Company also agrees to indemnify and hold harmless ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and each person, if any, who controls ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ within the meaning
of either Section 15 of the Act, or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments incurred
as a result of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ participation as a "qualified independent
underwriter" within the meaning of Rule 2720 of the National Association of
Securities Dealers' Conduct Rules in connection with the offering of the Common
Stock, except for any losses, claims, damages, liabilities, and judgments
resulting from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇, or such controlling person's, willful
misconduct, bad faith or gross negligence.
(d) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company
-25-
in writing by such Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(e) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 7(a), 7(b), 7(c) or 7(d), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom
such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay 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, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (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. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in the case of parties indemnified
pursuant to Section 7(a), and by the Company, in the case of parties indemnified
pursuant to Section 7(d). 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. 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 the second and third sentences of this paragraph,
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
-26-
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 of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding. Notwithstanding anything contained herein to the contrary, if
indemnity may be sought pursuant to Section 7(b) hereof in respect of such
action or proceeding, then in addition to such separate firm for the indemnified
parties, the indemnifying party shall be liable for the reasonable fees and
expenses of not more than one separate firm (in addition to any local counsel)
for DLJ for the defense of any losses, claims, damages and liabilities arising
out of the Directed Share Program, and all persons, if any, who control DLJ
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act. Furthermore, notwithstanding anything contained herein to the contrary, if
indemnity may be sought pursuant to Section 7(c) hereof in respect of such
action or proceeding, then in addition to such separate firm for the indemnified
parties, the indemnifying party shall be liable for the reasonable fees and
expenses of not more than one separate firm (in addition to any local counsel)
for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in its capacity as a "qualified independent underwriter" and
all persons, if any, who control ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act.
(f) To the extent the indemnification provided for in Section 7(a),
7(b), 7(c) or 7(d) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause 7(f)(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
7(f)(i) above but also the relative fault of the Company on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims,
-27-
damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Shares
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Shares (before deducting expenses) received by the
Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares. The
relative fault of the Company on the one hand and the Underwriters on the other
hand 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 Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the respective number of Shares they have
purchased hereunder, and not joint.
(g) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 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 that does not take account of the
equitable considerations referred to in Section 7(f). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, 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 Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
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(h) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Shares.
8. TERMINATION. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the NASD, the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and (b) in the case of any of the events specified in clauses 8(a)(i)
through 8(a)(iv), such event, singly or together with any other such event,
makes it, in your judgment, impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus.
9. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase Shares that it has or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I or Schedule
II bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the
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Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; PROVIDED that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
number of Shares without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares to
be purchased, and arrangements satisfactory to you and the Company for the
purchase of such Firm Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
10. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original,
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with the same effect as if the signatures thereto and hereto were upon the same
instrument.
11. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
12. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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Very truly yours,
▇▇▇▇ CORP.
By: ______________________
Name:
Title:
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
BT ALEX. ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
Acting severally on behalf of themselves and the several U.S. Underwriters named
in Schedule II hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:___________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
Acting severally on behalf of themselves
and the several International Underwriters
named in Schedule III hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
By:____________________________
Name:
Title:
SCHEDULE I
SUBSIDIARIES
1. ▇▇▇▇ Rental, Inc.
2. ▇▇▇▇ Machinery, Inc.
SCHEDULE II
U.S. UNDERWRITERS
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
BT Alex. ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation
-----------
Total U.S. Firm Shares.....................................
===========
SCHEDULE III
INTERNATIONAL UNDERWRITERS
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
BT Alex. ▇▇▇▇▇ International, a division of
Bankers Trust International PLC
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International
-----------
Total International Firm Shares.....................................
===========