Exhibit 1.1
[FORM OF UNDERWRITING AGREEMENT]
13,000,000 Shares
INFRASOURCE SERVICES, INC.
Common Stock
UNDERWRITING AGREEMENT
March ,
2006
LEHMAN BROTHERS INC.
CREDIT SUISSE SECURITIES (USA) LLC
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
FIRST ALBANY CAPITAL INC.
As Representatives of the several
Underwriters named in Schedule 1
attached hereto,
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Certain
stockholders of InfraSource Services, Inc., a Delaware
corporation (the " Company "), named in
Schedule 2 attached hereto (the " Selling
Stockholders "), propose to sell an aggregate of 13,000,000
shares (the " Firm Stock ") of the Company's common stock,
par value $.001 per share (the " Common Stock "). In
addition, the Selling Stockholders propose to grant to the
underwriters (the " Underwriters ") named in
Schedule 1 attached to this agreement (this "
Agreement ") options to purchase up to an aggregate of
1,950,000 additional shares of the Common Stock on the terms set
forth in Section 3 (the " Option Stock "). The Firm
Stock and the Option Stock, if purchased, are hereinafter
collectively called the " Stock ." This is to confirm the
agreement concerning the purchase of the Stock from the Selling
Stockholders by the Underwriters.
1.
Representations, Warranties and
Agreements of the Company. The Company
represents, warrants and agrees with the several Underwriters
that:
(a) A
registration statement on Form S-3 (File No. 333-132112)
relating to the Stock has (i) been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the " Securities Act "), and the rules and
regulations (the " Rules and Regulations ") of the
Securities and Exchange Commission (the " Commission ")
thereunder; (ii) been filed with the Commission under the
Securities Act; and (iii) become effective under the
Securities Act. Copies of such registration statement and any
amendment thereto have been made available by the Company to you as
the representatives (the " Representatives ") of the
Underwriters. As used in this Agreement:
(i) "
Applicable Time " means [ ]
[a.m.][p.m.] (New York City time) on the date of this
Agreement;
(ii) "
Effective Date " means the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto, was declared effective by the Commission;
(iii) "
Issuer Free Writing Prospectus " means each "free writing
prospectus" (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the
Stock;
(iv) "
Preliminary Prospectus " means any preliminary prospectus
relating to the Stock included in such registration statement
before it becomes effective or filed with the Commission pursuant
to Rule 424(a) of the Rules and Regulations or included in
the
registration statement at the time of its
effectiveness that omits Rule 430A Information (as defined
below);
(v) "
Pricing Disclosure Package " means, as of the Applicable
Time, the most recent Preliminary Prospectus, together with each
Issuer Free Writing Prospectus filed or used by the Company on or
before the Applicable Time (which Issuer Free Writing Prospectuses
are identified on Schedule 4 hereto), other than a road show
that is an Issuer Free Writing Prospectus under Rule 433 of
the Rules and Regulations;
(vi) "
Prospectus " means the final prospectus relating to the
Stock, as filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations (" Rule 424(b) ");
and
(vii) "
Registration Statement " means such registration statement,
as amended as of the Effective Date, including any Preliminary
Prospectus or the Prospectus and all exhibits to such registration
statement, and including all information deemed to be a part of the
Registration Statement as of the Effective Date pursuant to
Rule 430A of the Rules and Regulations and contained in the
Prospectus (the " Rule 430A Information ").
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(b) Registration Statement.
Any reference to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to
Form S-3 under the Securities Act as of the date of such
Preliminary Prospectus or the Prospectus, as the case may be. Any
reference to the " most recent Preliminary Prospectus "
shall be deemed to refer to the latest Preliminary Prospectus
included in the Registration Statement prior to or on the date
hereof (including, for purposes hereof, any documents incorporated
by reference therein prior to or on the date hereof). Any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document
filed under the Securities Exchange Act of 1934, as amended (the "
Exchange Act "), after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and incorporated
by reference in such Preliminary Prospectus or the Prospectus, as
the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include any annual report
of the Company on Form 10-K filed with the Commission pursuant
to Section 13(a) or 15(d) of the Exchange Act after the
Effective Date that is incorporated by reference in the
Registration Statement. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending the effectiveness of the Registration
Statement.
(b) The
Company was not at the time of initial filing of the Registration
Statement an "ineligible issuer" (as defined in Rule 405 of
the Rules and Regulations (" Rule 405 ")). The Company
has been since the time of initial filing of the Registration
Statement and as of the date hereof is eligible to use
Form S-3 for the offering of the Stock.
(c) The
Registration Statement conformed in all material respects on the
Effective Date and any amendment to the Registration Statement
filed after the date hereof will conform in all material respects
on the applicable Effective Date, to the requirements of the
Securities Act and the Rules and Regulations. The Preliminary
Prospectus conformed, and the Prospectus will conform, in all
material respects when filed with the Commission and on the
applicable Delivery Date to the requirements of the Securities Act
and the Rules and Regulations. The documents incorporated by
reference in any Preliminary Prospectus or the Prospectus
conformed, and any further documents so incorporated will conform,
when filed with the Commission, in all material respects to the
requirements of the Exchange Act and the rules and regulations of
the Commission thereunder.
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(d) The
Registration Statement did not, as of the Effective Date, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Registration Statement in reliance upon and in
conformity with written information furnished to the Company
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 10(f).
(e) The
Prospectus will not, as of its date and on the applicable Delivery
Date, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Prospectus in reliance upon and in conformity
with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 10(f).
(f) The
documents incorporated by reference in any Preliminary Prospectus
or the Prospectus did not, and any further documents filed and
incorporated by reference therein will not, when filed with the
Commission, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(g) The
Pricing Disclosure Package did not, as of the Applicable Time,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the price of the
Stock and disclosures directly relating thereto will be included on
the cover page of the Prospectus; provided that no
representation or warranty is made as to information contained in
or omitted from the Pricing Disclosure Package in reliance upon and
in conformity with written information furnished to the Company
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 10(f).
(h) Each
Issuer Free Writing Prospectus (including, without limitation, any
road show that is a free writing prospectus under Rule 433),
when considered together with the Pricing Disclosure Package as of
the Applicable Time, did not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, except that the price of the Stock and disclosures
directly relating thereto will be included on the cover page of the
Prospectus; provided that no representation or warranty is
made as to information contained in or omitted from any Issuer Free
Writing Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives by
or on behalf of any Underwriter specifically for inclusion therein,
which information is specified in Section 10(f).
(i) Each
Issuer Free Writing Prospectus conformed or will conform in all
material respects to the requirements of the Securities Act and the
Rules and Regulations on the date of first use, and the Company has
complied with any filing requirements applicable to such Issuer
Free Writing Prospectus pursuant to the Rules and Regulations. The
Company has not made any offer relating to the Stock that would
constitute an Issuer Free Writing Prospectus without the written
consent of the Representatives except as listed on
Schedule 4 hereto. The Company has retained in
accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the
Rules and Regulations.
(j) Each
of the Company and its subsidiaries (as defined in Section 19)
has been duly incorporated or, in the case of each subsidiary that
is not a corporation, organized, is validly
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existing
and in good standing as a corporation or other business entity
under the laws of its jurisdiction of organization and is duly
qualified to do business and in good standing as a foreign
corporation or other business entity in each jurisdiction in which
its ownership or lease of property or the conduct of its businesses
requires such qualification, except where the failure to be so
qualified or in good standing, would not, in the aggregate,
reasonably be expected to have a material adverse effect on the
general affairs, management, consolidated financial position,
stockholders' equity, results of operations, business or prospects
of the Company and its subsidiaries taken as a whole (a "
Material Adverse Effect "); each of the Company and its
subsidiaries has all power and authority necessary to own or hold
its properties and to conduct the businesses in which it is
engaged. The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than
the subsidiaries listed in Exhibit 21 to the Company's Annual
Report on Form 10-K for the most recent fiscal
year.
(k) The
Company has an authorized capitalization as set forth in each of
the most recent Preliminary Prospectus and the Prospectus under the
caption " Capitalization ," and all of the issued shares of
capital stock of the Company have been duly authorized and validly
issued, are fully paid and non-assessable, conform in all material
respects to the description thereof under the caption "
Description of Capital Stock " included in each of the most
recent Preliminary Prospectus and the Prospectus and were issued in
compliance in all material respects with federal and state
securities laws and not in violation of any preemptive right,
resale right, right of first refusal or similar right. All of the
Company's options, warrants and other rights to purchase or
exchange any securities for shares of the Company's capital stock
have been duly authorized and validly issued, conform in all
material respects to the description thereof contained in each of
the most recent Preliminary Prospectus and the Prospectus and were
issued in material compliance with federal and state securities
laws. All of the issued shares of capital stock or other equity
interests, as applicable, of each subsidiary of the Company have
been duly authorized and validly issued, are fully paid and, with
respect to each subsidiary that is a corporation, are
non-assessable and (except for directors' qualifying shares for
foreign subsidiaries and except as set forth in each of the most
recent Preliminary Prospectus and the Prospectus) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, except for such liens,
encumbrances, equities or claims as would not, in the aggregate,
reasonably be expected to have a Material Adverse
Effect.
(l) The
Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement. This
Agreement has been duly and validly authorized, executed and
delivered by the Company.
(m) The
execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated
hereby will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, impose any lien,
charge or encumbrance upon any property or assets of the Company
and its subsidiaries, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, license or other 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 is bound
or to which any of the property or assets of the Company or any of
its subsidiaries is subject; (ii) result in any violation of
the provisions of the charter or by-laws (or similar organizational
documents) of the Company or any of its subsidiaries; or
(iii) result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets except, in the case of clauses
(i) and (iii), such conflicts, breaches, violations or
defaults as would not reasonably be expected to have a Material
Adverse Effect.
(n) Except
for the registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as have been obtained or may be required
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under
the Exchange Act, by the National Association of Securities
Dealers, Inc. (the " NASD ") or under applicable state
securities laws in connection with the purchase and sale of the
Stock by the Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets is required for
the execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated
hereby.
(o) Except
as identified in each of the most recent Preliminary Prospectus and
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 owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement previously
filed by the Company under the Securities Act.
(p) Except
as described in each of the most recent Preliminary Prospectus and
the Prospectus, the Company has not sold or issued any shares of
Common Stock during the six month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under,
or Regulation D or S of, the Securities Act other than shares
of Common Stock issued pursuant to employee benefit plans,
qualified stock option plans or other employee compensation plans
or pursuant to outstanding options, rights or warrants.
(q) Except
as described in each of the most recent Preliminary Prospectus and
the Prospectus, (A) neither the Company nor any of its
subsidiaries has sustained, since the date of the latest audited
financial statements included in each of the most recent
Preliminary Prospectus and the Prospectus, any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, and (B) since
such date, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
adverse change, in or affecting the general affairs, management,
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its
subsidiaries taken as a whole, in each case except as would not
reasonably be expected to have a Material Adverse
Effect.
(r) Since
the respective dates as of which information is given in each of
the most recent Preliminary Prospectus and the Prospectus and
except as may otherwise be described therein, the Company has not
(i) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations that were
incurred in the ordinary course of business, (ii) entered into
any material transaction not in the ordinary course of business or
(iii) declared or paid any dividend on its capital
stock.
(s) The
historical financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement
or included in each of the most recent Preliminary Prospectus and
the Prospectus comply as to form in all material respects with the
requirements of Regulation S-X under the Securities Act and
present fairly in all material respects the financial condition,
results of operations and cash flows of the entities purported to
be shown thereby at the dates and for the periods indicated and
have been prepared in conformity with accounting principles
generally accepted in the United States applied on a consistent
basis throughout the periods involved, except as otherwise stated
therein.
(t) PricewaterhouseCoopers
LLP, who have certified certain financial statements of the Company
and its consolidated subsidiaries, whose report appears in each of
the most recent Preliminary Prospectus and the Prospectus and who
have delivered the initial letter referred to in
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Section 9(i) hereof, are independent
public accountants as required by the Securities Act and the Rules
and Regulations.
(u) The
Company and each of its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is
commercially reasonable for the conduct of their respective
businesses.
(v) The
statistical and market-related data included in each of the most
recent Preliminary Prospectus and the Prospectus are based on or
derived from sources that the Company reasonably believes to be
reliable and accurate in all material respects.
(w) Neither
the Company nor any subsidiary is an "investment company" within
the meaning of such term under the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission
thereunder.
(x) Except
as described in each of the most recent Preliminary Prospectus and
the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party
or of which any property or assets of the Company or any of its
subsidiaries is the subject that would, in the aggregate,
reasonably be expected to have a Material Adverse Effect or would,
in the aggregate, reasonably be expected to have a material adverse
effect on the performance of this Agreement or the consummation of
the transactions contemplated hereby; and to the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(y) Except
as described in each of the most recent Preliminary Prospectus and
the Prospectus, no relationship, direct or indirect, exists between
or among the Company, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company, on the other
hand, that is required to be described in the most recent
Preliminary Prospectus or the Prospectus which is not so
described.
(z) No
labor disturbance by the employees of the Company or its
subsidiaries exists or, to the knowledge of the Company, is
imminent, in each case, that would reasonably be expected to have a
Material Adverse Effect.
(aa) The
Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as 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 would have any material liability; the Company
has not incurred and does not expect to incur any material
liability under (i) Title IV of ERISA with respect to the
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 would have any liability that is
intended to be qualified under Section 401(a) of the Code is
so qualified and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such
qualification.
(bb) The
Company and each of its subsidiaries have filed all material
federal, state, local and foreign income and franchise tax returns
required to be filed through the date hereof, subject to permitted
extensions, and have paid all material taxes due thereon other than
those payable without interest or penalty or being contested in
good faith by appropriate proceedings and for which adequate
reserves have been established in accordance with GAAP, and the
Company does not have any knowledge of any tax deficiency which, if
determined adversely to the Company or any of its subsidiaries,
would reasonably be expected to have a Material Adverse
Effect.
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(cc) Neither
the Company nor any of its subsidiaries (i) is in violation of
its charter or by-laws (or similar organizational documents),
(ii) is in default, and no event has occurred that, with
notice or lapse of time or both, would constitute such a default,
in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, license or other agreement or instrument to which it is
a party or by which it is bound or to which any of its properties
or assets is subject or (iii) is in violation of any statute
or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over it or its property or
assets (including, without limitation, the Federal Communications
Commission) or has failed to obtain any license, permit,
certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct
of its business, except in the case of clauses (ii) and (iii),
to the extent any such conflict, breach, violation, default or
failure could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(dd) There
is and has been no failure on the part of the Company and any of
the Company's directors or officers, in their capacities as such,
to comply with the provisions of the Sarbanes-Oxley Act of 2002 and
the rules and regulations promulgated in connection therewith, as
to which they are required to be in compliance, except as would not
reasonably be expected to result in a Material Adverse
Effect.
(ee) The
Company and each of its subsidiaries own or possess adequate rights
to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses, know-how, software, systems
and technology (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their respective
businesses and are not aware that the conduct of their respective
businesses conflict with, and have not received any notice of any
claim of conflict with, any such rights of others, except as would
not reasonably be expected to have a Material Adverse
Effect.
(ff) There
has been no storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or
any of its subsidiaries (or, to the knowledge of the Company, any
of their predecessors in interest) at, upon or from any of the
property now or previously owned or leased by the Company or its
subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any
violation or remedial action as would not reasonably be expected to
have a Material Adverse Effect; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of
any kind onto or from such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due
to or caused by the Company or any of its subsidiaries or with
respect to which the Company or any of its subsidiaries have
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release as would not reasonably be
expected to have a Material Adverse Effect. The terms "
hazardous wastes ," " toxic wastes ," " hazardous
substances " and " medical wastes " shall have the
meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental
protection.
(gg) Neither
the Company nor any of its subsidiaries, nor, to the knowledge of
the Company, any director, officer or employee of the Company or
any of its subsidiaries, has (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or
is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
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(hh) The
operations of the Company and its subsidiaries are and have been
conducted at all times in compliance in all material respects with
applicable financial recordkeeping and reporting requirements of
the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the " Money Laundering
Laws ") and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened, except, in each case, as would not
reasonably be expected to have a Material Adverse
Effect.
(ii) Neither
the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer, agent or employee of the
Company or any of its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department ("OFAC").
(jj) The
Company has not distributed and, prior to the later to occur of any
Delivery Date and completion of the distribution of the Stock, will
not distribute any offering material in connection with the
offering and sale of the Stock other than any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus to
which the Representatives have consented in accordance with
Section 6(a)(vi) and any Issuer Free Writing Prospectus
identified on Schedule 4 hereto.
(kk) The
Company has not taken and will not take, directly or indirectly,
any action designed to or that has constituted or that would
reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the shares of the
Stock.
Any
certificate signed by any officer of the Company and delivered to
the Representatives in connection with the offering of the Stock
shall be deemed a representation and warranty by the Company, as to
matters covered thereby, to each Underwriter.
2.
Representations, Warranties and
Agreements of the Selling Stockholders.
Each Selling Stockholder, severally and not
jointly, represents, warrants and agrees with the several
Underwriters that:
(a) Neither
the Selling Stockholder nor any person acting on behalf of the
Selling Stockholder (other than, if applicable, the Company and the
Underwriters) has used or referred to any "free writing prospectus"
(as defined in Rule 405), relating to the Stock;
(b) The
Selling Stockholder has, and immediately prior to any Delivery Date
on which the Selling Stockholder is selling shares of Stock, the
Selling Stockholder will have, good and valid title to, or a valid
"security entitlement" within the meaning of Section 8-501 of
the New York Uniform Commercial Code (the " UCC ") in
respect of, the shares of Stock to be sold by the Selling
Stockholder hereunder on such Delivery Date, free and clear of all
liens, encumbrances, equities or claims, except for any liens,
encumbrances, equities or claims arising under the Custody
Agreement (as defined below), the Powers of Attorney (as defined
below) and this Agreement.
(c) Upon
payment for the Stock to be sold by such Selling Stockholder,
delivery of such Stock, as directed by the Underwriters, to
Cede & Co. (" Cede ") or such other nominee as may
be designated by The Depository Trust Company (" DTC "),
registration of such Stock in the name of Cede or such other
nominee and the crediting of such Stock on the books of DTC to
securities accounts of the Underwriters (assuming that neither DTC
nor any such Underwriter has notice of any adverse claim (within
the meaning of Section 8-105 of the UCC) to such Stock),
(i) under Section 8-501 of the UCC, the Underwriters will
acquire a valid security entitlement in respect of
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such
Stock and (ii) no action based on any "adverse claim", within
the meaning of Section 8-102 of the UCC, to such Stock may be
successfully asserted against Lehman Brothers Inc. as
representative of the Underwriters with respect to such security
entitlement. For purposes of this representation, such Selling
Stockholder may assume that when such payment, delivery and
crediting occur, (A) such Shares will have been registered in
the name of Cede or another nominee designated by DTC, in each case
on the Company's share registry in accordance with its certificate
of incorporation, bylaws and applicable law, (B) DTC will be
registered as a "clearing corporation" within the meaning of
Section 8-102 of the UCC and (C) appropriate entries to
the accounts of the several Underwriters on the records of DTC will
have been made pursuant to the UCC.
(d) The
Selling Stockholder has placed in custody under a custody agreement
(the " Custody Agreement " and, together with all other
similar agreements executed by the other Selling Stockholders, the
" Custody Agreements ") with LaSalle Bank National
Association, as custodian (the "Custodian"), for delivery under
this Agreement, certificates in negotiable form (with signature
guaranteed by a participant in the Securities Transfer Agents
Medallion Program, the New York Stock Exchange Medallion Signature
Program or the Stock Exchange Medallion Program) representing the
shares of Stock to be sold by the Selling Stockholder
hereunder.
(e) The
Selling Stockholder has duly and irrevocably executed and delivered
a power of attorney (the " Power of Attorney " and, together
with all other similar agreements executed by the other Selling
Stockholders, the " Powers of Attorney ") appointing
Messrs. David R. Helwig, Terence R. Montgomery, Deborah Lofton
and Ian A. Schapiro as attorneys-in-fact (the "
Attorneys-in-Fact "), with full power of substitution, and
with full authority (exercisable by any one or more of them) to
execute and deliver this Agreement on such Selling Stockholder's
behalf and to take such other action as may be necessary or
desirable to carry out the provisions hereof on behalf of the
Selling Stockholder.
(f) The
Selling Stockholder has full right, power and authority, corporate
or otherwise, to enter into this Agreement, the Custody Agreement
and the Power of Attorney.
(g) This
Agreement has been duly and validly authorized, executed and
delivered by or on behalf of the Selling Stockholder.
(h) The
Power of Attorney and the Custody Agreement have been duly and
validly authorized, executed and delivered by or on behalf of the
Selling Stockholder and constitute valid and legally binding
obligations of the Selling Stockholder enforceable against the
Selling Stockholder in accordance with their terms, subject to
(i) the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally,
(ii) general equitable principles (whether considered in a
proceeding in equity or at law) and (iii) an implied covenant
of good faith and fair dealing.
(i) The
execution, delivery and performance of this Agreement, the Custody
Agreement and the Power of Attorney by the Selling Stockholder and
the consummation by the Selling Stockholder of the transactions
contemplated hereby and thereby do not and will not
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, license or
other agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound or to which any
of the property or assets of the Selling Stockholder is subject,
(ii) for each Selling Stockholder that is not a natural
person, result in any violation of the provisions of the charter or
by-laws (or similar organizational documents) of such Selling
Stockholder or (iii) result in any violation of any statute or
any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Selling Stockholder or the
property or assets of the Selling Stockholder, except in the case
of clauses (i) and (iii) for such conflicts, breaches,
violations or defaults as would not reasonably be expected to
materially adversely affect such Selling Stockholder's ability to
perform its obligations hereunder and under the Custody Agreement
and the Power of Attorney.
9
(j) No
consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body having
jurisdiction over the Selling Stockholder or the property or assets
of the Selling Stockholder is required for the execution, delivery
and performance of this Agreement, the Custody Agreement or the
Power of Attorney by the Selling Stockholder and the consummation
by the Selling Stockholder of the transactions contemplated hereby
and thereby, except for the registration of the Stock under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as have been obtained or as may be
required under the Exchange Act, by the NASD and under applicable
state securities laws in connection with the purchase and sale of
the Stock by the Underwriters.
(k) To
the knowledge of the Selling Stockholder, the Registration
Statement did not, as of the Effective Date, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided that the representations
and warranties in this Section 2(k) only apply to statements
or omissions in the Registration Statement based on and in
conformity with information relating to such Selling Stockholder
furnished to the Company in writing by such Selling Stockholder
expressly for use therein; provided , further that no
representation or warranty is made as to information contained in
or omitted from the Registration Statement in reliance upon and in
conformity with written information furnished to the Company
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 10(f).
(l) To
the knowledge of the Selling Stockholder, the Prospectus does not,
as of its date, and will not on the applicable Delivery Date,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the
representations and warranties in this Section 2(l) only apply
to statements or omissions in the Prospectus based on and in
conformity with information relating to such Selling Stockholder
furnished to the Company in writing by such Selling Stockholder
expressly for use therein; provided , further that no
representation or warranty is made as to information contained in
or omitted from the Prospectus in reliance upon and in conformity
with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 10(f).
(m) To
the knowledge of the Selling Stockholder, the Pricing Disclosure
Package did not, as of the Applicable Time, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that the representations and
warranties in this Section 2(m) only apply to statements or
omissions in the Pricing Disclosure Package based on and in
conformity with information relating to such Selling Stockholder
furnished to the Company in writing by such Selling Stockholder
expressly for use therein; provided , further that no
representation or warranty is made as to information contained in
or omitted from the Pricing Disclosure Package in reliance upon and
in conformity with written information furnished to the Company or
the Selling Stockholders through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 10(f).
(n) The
Selling Stockholder has not taken and will not take, directly or
indirectly, any action that is designed to or that has constituted
or that would reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the shares of the
Stock.
10
(o) The
sale of the Common Stock by any Selling Stockholder that is an
affiliate of the Company does not, to the knowledge of such Selling
Stockholder, violate any of the Company's internal policies
regarding the sale of stock by its affiliates.
Any
certificate signed by any Selling Stockholder and delivered to the
Representatives in connection with the offering of the Stock shall
be deemed a representation and warranty by such Selling
Stockholder, as to matters covered thereby, to each
Underwriter.
3.
Purchase of the Stock by the
Underwriters. On the basis of the
representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, each Selling Stockholder
hereby agrees to sell the number of shares of the Firm Stock set
forth opposite its name in Schedule 2 hereto, severally
and not jointly, to the several Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase the
number of shares of the Firm Stock set forth opposite that
Underwriter's name in Schedule 1 hereto. Each
Underwriter shall be obligated to purchase from each Selling
Stockholder, that number of shares of the Firm Stock that
represents the same proportion of the number of shares of the Firm
Stock to be sold by such Selling Stockholder as the number of
shares of the Firm Stock set forth opposite the name of such
Underwriter in Schedule 1 represents the total number
of shares of the Firm Stock to be purchased by all of the
Underwriters pursuant to this Agreement. The respective purchase
obligations of the Underwriters with respect to the Firm Stock
shall be rounded among the Underwriters to avoid fractional shares,
as the Representatives may determine.
In
addition, each Selling Stockholder grants to the Underwriters an
option to purchase up to the number of shares of Option Stock set
forth opposite such Selling Stockholder's name in
Schedule 2 hereto, severally and not jointly. Such
options are exercisable in the event that the Underwriters sell
more shares of Common Stock than the number of shares of Firm Stock
in the offering and as set forth in Section 5 hereof. Any such
election to purchase Option Stock shall be made in proportion to
the maximum number of shares of Option Stock to be sold by each
Selling Stockholder as set forth in Schedule 2 hereto.
Each Underwriter agrees, severally and not jointly, to purchase the
number of shares of Option Stock (subject to such adjustments to
eliminate fractional shares as the Representatives may determine)
that bears the same proportion to the total number of shares of
Option Stock to be sold on such Delivery Date as the number of
shares of Firm Stock set forth in Schedule 1 hereto
opposite the name of such Underwriter bears to the total number of
shares of Firm Stock.
The
price of both the Firm Stock and any Option Stock purchased by the
Underwriters shall be
$ • per
share.
The
Selling Stockholders shall not be obligated to deliver any of the
Firm Stock or Option Stock to be delivered on the applicable
Delivery Date, except upon payment for all such Stock to be
purchased on such Delivery Date as provided herein.
4.
Offering of Stock by the
Underwriters. Upon authorization by the
Representatives of the release of the Firm Stock, the several
Underwriters propose to offer the Firm Stock for sale upon the
terms and conditions to be set forth in the Prospectus.
5.
Delivery of and Payment for the
Stock. Delivery of and payment for the
Firm Stock shall be made at 10:00 A.M., New York City time, on
the third full business day following the date of this Agreement or
at such other date or place as shall be determined by agreement
between the Representatives and the Company. This date and time are
sometimes referred to as the "Initial Delivery Date." Delivery of
the Firm Stock shall be made to the Representatives for the account
of each Underwriter against payment by the several Underwriters
through the Representatives of the aggregate purchase prices of the
Firm Stock being sold by the Selling Stockholders to or upon the
order of the Selling Stockholders by wire transfer in immediately
available funds to the accounts specified by the Selling
Stockholders. Time shall be of the essence, and delivery at the
time and place
11
specified pursuant to this
Agreement is a further condition of the obligation of each
Underwriter hereunder. The Selling Stockholders shall deliver the
Firm Stock through the facilities of The DTC unless the
Representatives shall otherwise instruct.
The
option granted in Section 3 will expire 30 days after the
date of this Agreement and may be exercised in whole or from time
to time in part by written notice being given to the Company and
the Selling Stockholders by the Representatives; provided
that if such date falls on a day that is not a business day, the
option granted in Section 3 will expire on the next succeeding
business day. Such notice shall set forth the aggregate number of
shares of Option Stock as to which the option is being exercised,
the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be
issued and the date and time, as determined by the Representatives,
when the shares of Option Stock are to be delivered; provided,
however , that this date and time shall not be earlier than the
Initial Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor
later than the fifth business day after the date on which the
option shall have been exercised. Each date and time the shares of
Option Stock are delivered are sometimes referred to as an "
Option Stock Delivery Date ," and the Initial Delivery Date
and any Option Stock Delivery Date are sometimes each referred to
as a " Delivery Date ."
Delivery
of the Option Stock by the Selling Stockholders and payment for the
Option Stock by the several Underwriters through the
Representatives shall be made at 10:00 A.M., New York City
time, on the date specified in the corresponding notice described
in the preceding paragraph or at such other date or place as shall
be determined by agreement between the Representatives and the
Company. On the Option Stock Delivery Date, the Selling Stockholder
shall, severally and not jointly, deliver or cause to be delivered
the Option Stock to the Representatives for the account of each
Underwriter against payment by the several Underwriters through the
Representatives of the respective aggregate purchase prices of the
Option Stock being sold by the Selling Stockholders to or upon the
order of the Selling Stockholders by wire transfer in immediately
available funds to the accounts specified by the Selling
Stockholders. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. The
Selling Stockholders shall deliver the Option Stock through the
facilities of DTC unless the Representatives shall otherwise
instruct.
6.
