EXHIBIT 1.1
4,000,000 Shares
COACH USA, INC.
Common Stock
UNDERWRITING AGREEMENT
May ___, 1998
BT Alex. Xxxxx Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
NationsBanc Xxxxxxxxxx Securities LLC
c/o BT Alex. Xxxxx Incorporated
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Coach USA, Inc., a Delaware corporation (the "Company"), and certain
shareholders of the Company named in Schedule II hereto (the "Selling
Shareholders") propose to sell to you (the "Underwriters") an aggregate of
4,000,000 shares of the Company's Common Stock, par value $.01 per share (the
"Firm Shares"), of which 2,000,000 shares will be sold by the Company and
2,000,000 shares will be sold by the Selling Shareholders. The respective
amounts of the Firm Shares to be so purchased by each of the Underwriters are
set forth opposite their names in Schedule I hereto, and the respective amounts
to be sold by the Selling Shareholders are set forth opposite their names in
Schedule II hereto. The Company and the Selling Shareholders are sometimes
herein referred to as the "Sellers." The Company also proposes to sell at the
Underwriters' option an aggregate of up to 600,000 additional shares of the
Company's Common Stock (the "Option Shares") as set forth below.
You have advised the Company and the Selling Shareholders (a) that you
are authorized to enter into this Agreement and (b) that you are willing, acting
severally and not jointly, to purchase the numbers of Firm Shares set forth
opposite your respective names in Schedule I, plus your pro rata portion of the
Option Shares if you elect to exercise the over-allotment option in whole or in
part for the accounts of the Underwriters. The Firm Shares and the Option Shares
(to the extent the aforementioned option is exercised) are herein collectively
called the "Shares."
1
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
SHAREHOLDERS
(a) The Company represents and warrants to each of the Underwriters
as follows:
(i) A registration statement on Form S-3 (Reg. No. 333-_______)
with respect to the Shares has been carefully prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the Rules and Regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and has been filed with the Commission. The
Company has complied with the conditions for the use of Form S-3. Copies
of such registration statement, including any amendments thereto, the
preliminary prospectuses (meeting the requirements of the Rules and
Regulations) contained therein and the exhibits, financial statements
and schedules, as finally amended and revised, have heretofore been
delivered by the Company to you. Such registration statement, together
with any registration statement filed by the Company pursuant to Rule
462(b) under the Act, herein referred to as the "Registration
Statement," which shall be deemed to include all information omitted
therefrom in reliance upon Rule 430A and contained in the Prospectus
referred to below, has become effective under the Act and no
post-effective amendment to the Registration Statement has been filed as
of the date of this Agreement. "Prospectus" means (a) the form of
prospectus first filed with the Commission pursuant to Rule 424(b) or
(b) the last preliminary prospectus included in the Registration
Statement filed prior to the time it becomes effective or filed pursuant
to Rule 424(a) under the Act that is delivered by the Company to the
Underwriters for delivery to purchasers of the Shares, together with the
term sheet or abbreviated term sheet filed with the Commission pursuant
to Rule 424(b)(7) under the Act. Each preliminary prospectus included in
the Registration Statement prior to the time it becomes effective is
herein referred to as a "Preliminary Prospectus." Any reference herein
to the Registration Statement, any Preliminary Prospectus or to the
Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein, and, in the case of any reference
herein to any Prospectus, also shall be deemed to include any documents
incorporated by reference therein, and any supplements or amendments
thereto, filed with the Commission after the date of filing of the
Prospectus under Rules 424(b) or 430A, and prior to the termination of
the offering of the Shares by the Underwriters.
(ii) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own or lease its
properties and conduct its business as described in
2
the Registration Statement. Each of the subsidiaries of the Company as
listed in Exhibit 21 to the Company's Annual Report on Form 10-K for the
year ended December 31, 1997 (collectively, the "Subsidiaries") has been
duly organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with corporate
power and authority to own or lease its properties and conduct its
business as described in the Registration Statement. The Company has no
subsidiaries, direct or indirect, except the Subsidiaries. The Company
and each of the Subsidiaries are duly qualified to transact business in
all jurisdictions in which the conduct of their respective businesses
requires such qualification, except where the failure to so qualify
would not have a materially adverse effect on the business and
operations of the Company and the Subsidiaries taken as a whole. The
outstanding shares of capital stock of each of the Subsidiaries have
been duly authorized and validly issued, are fully paid and
non-assessable. All of the outstanding shares of capital stock of each
of the Subsidiaries is owned by the Company free and clear of all liens,
encumbrances and equities and claims [ANY SHARES PLEDGED UNDER CREDIT
AGREEMENT?]; and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership interests in any
of the Subsidiaries is outstanding.
(iii) The outstanding shares of Common Stock of the Company,
including all Shares to be sold by the Selling Shareholders, have been
duly authorized and validly issued and are fully paid and
non-assessable; the Shares to be issued and sold by the Company have
been duly authorized and when issued and paid for as contemplated herein
will be validly issued, fully paid and non-assessable; and no preemptive
rights of stockholders exist with respect to any of the Shares or the
issue and sale thereof. Neither the filing of the Registration Statement
nor the offering or sale of the Shares as contemplated by this Agreement
gives rise to any rights, other than those which have been waived or
satisfied, for or relating to the registration of any shares of Common
Stock.
(iv) The information set forth under the caption "Capitalization"
in the Prospectus is true and correct. All of the Shares conform to the
description thereof contained or incorporated by reference in the
Registration Statement. The form of certificates for the Shares conforms
to the corporate law of the jurisdiction of the Company's incorporation.
(v) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed offering
of the Shares nor instituted proceedings for that purpose. The
Registration Statement contains, and the Prospectus and any amendments
or supplements thereto will contain, all statements which are required
to be stated therein by, and will conform to the requirements of the Act
and the Rules and Regulations. The documents incorporated by reference
in the Prospectus, at the time filed with the Commission, conformed in
all respects to the requirements of the Securities
3
Exchange Act of 1934 (the "Exchange Act") or the Act, as applicable, and
the Rules and Regulations. The Registration Statement and any amendment
thereto do not contain, and will not contain, any untrue statement of a
material fact and do not omit, and will not omit, to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus and any amendments and
supplements thereto do not contain, and will not contain, any untrue
statement of a material fact and do not omit, and will not omit, to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; PROVIDED, HOWEVER, that the Company makes no
representations or warranties as to information contained in or omitted
from the Registration Statement or the Prospectus, or any such amendment
or supplement, in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of any Underwriter,
specifically for use in the preparation thereof.
(vi) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes and schedules, as set forth or
incorporated by reference in the Registration Statement, present fairly
in all material respects the financial position and the results of
operations and cash flows of the Company and the consolidated
Subsidiaries at the indicated dates and for the indicated periods. Such
financial statements and related schedules have been prepared in
accordance with generally accepted principles of accounting,
consistently applied throughout the periods involved, except as
disclosed therein, and all adjustments necessary for a fair presentation
of results for such periods have been made. The summary pro forma
financial and statistical data included or incorporated by reference in
the Registration Statement present fairly the information shown therein
and such data has been compiled on a basis consistent with the financial
statements presented therein and the books and records of the Company.
The pro forma financial data of the Company and the Purchased Companies
(the 23 acquired companies which were accounted for as purchases) as set
forth or incorporated by reference in the Registration Statement,
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial information and have been properly compiled on the
pro forma bases described therein, and in the opinion of the Company,
the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(vii) Xxxxxx Xxxxxxxx LLP and Xxxxxxxx & Rishebarger PLLC who
have certified certain of the financial statements filed with the
Commission as part of, or incorporated by reference in, the Registration
Statement, are independent public accountants as required by the Act and
the Rules and Regulations.
(viii) There is no action, suit, claim or proceeding pending or,
to the knowledge of the Company, threatened against the Company or any
of the Subsidiaries before any
4
court or administrative agency or otherwise, which if determined
adversely to the Company or any of the Subsidiaries is reasonably likely
to result in any material adverse change in the earnings, business,
management, properties, assets, rights, operations, condition (financial
or otherwise) or prospects of the Company and the Subsidiaries, taken as
a whole, or to prevent the consummation of the transactions contemplated
hereby except as set forth in the Registration Statement.
(ix) Each of the Company and the Subsidiaries has good and
marketable title to all of its properties and assets reflected in its
financial statements (or as described in the Registration Statement)
hereinabove described, subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except those reflected in such financial
statements (or as described in the Registration Statement) or which are
not material in amount. Each of the Company and the Subsidiaries
occupies its leased properties under valid and binding leases conforming
in all material respects to the description thereof incorporated by
reference in the Registration Statement.
(x) Each of the Company and the Subsidiaries has filed all
Federal, state, local and foreign income tax returns which have been
required to be filed and have paid all taxes indicated by said returns
and all assessments received by it or any of them to the extent that
such taxes have become due and are not being contested in good faith.
All tax liabilities have been adequately provided for in the
consolidated financial statements of the Company.
(xi) Since the respective dates as of which information is given
in the Registration Statement, as it may be amended or supplemented,
there has not been any material adverse change or any development
involving a prospective material adverse change in or affecting the
earnings, business, management, properties, assets, rights, operations,
condition (financial or otherwise), or prospects of the Company and the
Subsidiaries, taken as a whole, whether or not occurring in the ordinary
course of business, and there has not been any material transaction
entered into or any material transaction that is probable of being
entered into by the Company or the Subsidiaries, other than transactions
in the ordinary course of business and changes and transactions
described in the Registration Statement, as it may be amended or
supplemented. Neither the Company nor any of the Subsidiaries has any
material contingent obligations which are not disclosed in the Company's
consolidated financial statements, as applicable, included or
incorporated by reference in the Registration Statement.
(xii) Neither the Company nor any of the Subsidiaries is, or with
the giving of notice or lapse of time or both, will be, in violation of
or in default under its Charter or By-Laws or under any agreement,
lease, contract, indenture or other instrument or obligation to which it
is a party or by which it, or any of its properties, is bound and which
default is of material significance in respect of the condition
(financial or
5
otherwise) of the Company and the Subsidiaries, taken as a whole, or the
business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and the
Subsidiaries, taken as a whole. The execution and delivery of this
Agreement, the consummation of the transactions herein contemplated and
the fulfillment of the terms hereof will not conflict with or result in
a material breach of any of the terms or provisions of, or constitute a
material default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any of the Subsidiaries
is a party, or of the Charter or By-Laws of the Company or any of the
Subsidiaries or any order, rule or regulation applicable to the Company
or any of the Subsidiaries of any court or of any regulatory body or
administrative agency or other governmental body having jurisdiction.
(xiii) Each material approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in connection with
the execution and delivery by the Company of this Agreement and the
consummation of the transactions herein contemplated (except such
additional steps as may be required by the Commission or the National
Association of Securities Dealers, Inc. (the "NASD")) has been obtained
or made and is in full force and effect.
(xiv) The Company and each of the Subsidiaries hold all material
licenses, certificates and permits from governmental authorities which
are necessary to the conduct of their businesses; and neither the
Company nor any of the Subsidiaries has infringed any patents, patent
rights, trade names, trademarks or copyrights, which infringement is
material to the business of the Company or such Subsidiary. The Company
knows of no material infringement by others of patents, patent rights,
trade names, trademarks or copyrights owned by or licensed to the
Company or any of the Subsidiaries.
(xv) Neither the Company, nor to the Company's best knowledge,
any of its affiliates or any of the Subsidiaries, has taken or may take,
directly or indirectly, any action designed to cause or result in, or
which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the shares
of Common Stock to facilitate the sale or resale of the Shares.
(xvi) Neither the Company nor any of the Subsidiaries is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended (the "1940 Act") and the
rules and regulations of the Commission thereunder.
(xvii) The Company and each of the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
6
conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences.
(xviii) The Company and each of the Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the value of
their respective properties and as is customary for companies engaged in
similar industries.
(xix) The Company and each of the Subsidiaries are 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 or any of
the Subsidiaries would have any liability; neither the Company nor any
of the Subsidiaries has incurred nor expects to incur liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal
from, any "pension plan," or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension
plan" for which the Company or any of the Subsidiaries would have any
liability that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which would cause the loss of
such qualification.
(b) Each of the Selling Shareholders severally represents and warrants
to each of the Underwriters and the Company that:
(i) Such Selling Shareholder has and at the Closing Date will
have good and valid title to the Firm Shares to be sold by such Selling
Shareholder, free of any liens, encumbrances, equities and claims, and
full right, power and authority to effect the sale and delivery of such
Firm Shares; and upon the delivery of and payment for such Firm Shares
pursuant to this Agreement, good and valid title thereto, free of any
liens, encumbrances, equities and claims, will be transferred to the
several Underwriters.
(ii) The consummation by such Selling Shareholder of the
transactions herein contemplated and the fulfillment by such Selling
Shareholder of the terms hereof will not result in a material breach of
any of the terms and provisions of, or constitute a material default
under, any indenture, mortgage, deed of trust or other agreement or
instrument to which such Selling Shareholder is a party, or of any
order, rule or regulation applicable to such Selling Shareholder of any
court or of any regulatory body or administrative agency
7
or other governmental body having jurisdiction which breach or default
is material to such Selling Shareholder.
(iii) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action designed to, or which has
constituted, or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Common Stock of the
Company.
(iv) No offering, sale, short sale or other disposition of any
Common Stock of the Company, any options or warrants to purchase shares
of Common Stock or any securities convertible into or exchangeable for
shares of Common Stock and no request for registration for the offer or
sale of any of the foregoing will be made for a period of 180 days after
the date of this Agreement, directly or indirectly, by such Selling
Shareholder otherwise than with the prior written consent of BT Alex.
Xxxxx Incorporated.
(v) Such Selling Shareholder has reviewed the Registration
Statement, including the Preliminary Prospectus and the Prospectus
included therein; such Selling Shareholder has no knowledge of any
material adverse information with regard to the current and prospective
operations of the Company and the Subsidiaries which has not been
disclosed in the Prospectus; the information contained in the
Registration Statement with respect to such Selling Shareholder is true
and correct; and to the best of the knowledge and belief of such Selling
Shareholder, the Registration Statement does not contain any
misstatement of a material fact or omits to state any fact which a
prospective purchaser of Shares might reasonably believe to be material;
and such Selling Shareholder is not selling any of the Shares because of
any knowledge which such Selling Shareholder has of any material adverse
information about the business, financial condition or prospects of the
Company other than such information as is set forth in the Registration
Statement.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES.
(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the
Sellers agree to sell to the Underwriters and each Underwriter agrees,
severally and not jointly, to purchase, at a price of $______ per share,
the number of Firm Shares set forth opposite the name of each
Underwriter in Schedule I hereof, subject to adjustments in accordance
with Section 9 hereof. The number of Firm Shares to be purchased by each
Underwriter from each Seller shall be as nearly as practicable in the
same proportion to the total number of Firm Shares being sold by each
Seller as the number of Firm Shares being purchased by each Underwriter
bears to the total number of Firm Shares to be sold hereunder. The
8
obligations of the Company and of each of the Selling Shareholders shall
be several and not joint.
(b) Certificates in negotiable form for the total number of the
Firm Shares to be sold hereunder by the Selling Shareholders have been
placed in custody with Xxxxxxx X. Xxxxx as custodian (the "Custodian")
pursuant to the Custodian Agreement executed by each Selling Shareholder
for delivery of all Firm Shares to be sold hereunder by the Selling
Shareholders. Each of the Selling Shareholders specifically agrees that
the Firm Shares represented by the certificates held in custody for the
Selling shareholders under the Custodian Agreement are subject to the
interests of the Underwriters hereunder, that the arrangements made by
the Selling Shareholders for such custody are to that extent
irrevocable, and that the obligations of the Selling Shareholders
hereunder shall not be terminable by any act or deed of the Selling
Shareholders (or by any other person, firm or corporation including the
company, the Custodian or the Underwriters) or by operation of law
(including the death of an individual Selling Shareholder or the
dissolution of a corporate Selling Shareholder) or by the occurrence of
any other event or events, except as set forth in the Custodian
Agreement. If any such event should occur prior to the delivery of the
Underwriters of the Firm Shares hereunder, certificates for the Firm
Shares shall be delivered by the Custodian in accordance with the terms
and conditions of this Agreement as if such event has not occurred. The
Custodian is authorized to receive and acknowledge receipt of the
proceeds of sale of the Shares held by it against delivery of such
Shares.
(c) Payment for the Firm Shares to be sold hereunder is to be
made via wire transfer to the Company in the case of the Firm Shares
being sold by the Company and to the order of "Xxxxxxx X. Xxxxx, as
Custodian" in the case of the Firm Shares being sold by the Selling
Shareholders, in each case against delivery of certificates for the Firm
Shares. Such payment and delivery are to be made at the offices of BT
Alex. Xxxxx Incorporated, Xxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx, at
10:00 a.m., Baltimore time, on the third business day after the date of
this Agreement or at such other place, time and date not later than five
(5) business days thereafter as you and the Company shall agree upon,
such time and date being herein referred to as the "Closing Date." (As
used herein, "business day" means a day on which the New York Stock
Exchange ("NYSE") is open for trading and on which banks in New York are
open for business and are not permitted by law or executive order to be
closed.) The certificates for the Firm Shares will be delivered in such
denominations and in such registrations as the Underwriters request in
writing not later than the second full business day prior to the Closing
Date, and will be made available for inspection by the Underwriters at
least one business day prior to the Closing Date.
(d) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set forth, the Company hereby
9
grants an option to the Underwriters to purchase the Option Shares at
the price per share as set forth in paragraph (a) of this Section 2. The
option granted hereby may be exercised in whole or in part by your
giving written notice to the Company (i) at any time before the Closing
Date or (ii) only once thereafter within 30 days after the date of this
Agreement setting forth the number of Option Shares as to which the
Underwriters are exercising the option, the names and denominations in
which the Option Shares are to be registered and the time and date at
which such certificates are to be delivered. The time and date at which
certificates for Option Shares are to be delivered shall be determined
by the Underwriters but shall not be earlier than three (3) nor later
than 10 full business days after the exercise of such option, nor in any
event prior to the Closing Date (such time and date being herein
referred to as the "Option Closing Date"). If the date of exercise of
the option is three (3) or more business days before the Closing Date,
the notice of exercise shall set the Closing Date as the Option Closing
Date. The number of Option Shares to be purchased by each Underwriter
shall be in the same proportion to the total number of Option Shares
being purchased as the number of Firm Shares being purchased by such
Underwriter bears to the total number of shares, adjusted by you in such
manner as to avoid fractional shares. The option with respect to the
Option Shares granted hereunder may be exercised only to cover
over-allotments in the sale of the Firm Shares by the Underwriters. You
may cancel such option at any time prior to its expiration by giving
written notice of such cancellation to the Company. To the extent, if
any, that the option is exercised, payment for the Option Shares shall
be made on the Option Closing Date in New York Clearing House funds by
certified or bank cashier's check drawn to the order of the Company
against delivery of certificates therefor at the offices of BT Alex.
Xxxxx Incorporated, Xxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx.
(e) If on the Closing Date any Selling Shareholder fails to sell
the Firm Shares which such Selling Shareholder has agreed to sell on
such date as set forth in Schedule II hereto, the Company agrees that it
will sell or arrange for the sale of that number of shares of Common
Stock to the Underwriters which represents Firm Shares which such
Selling Shareholder has failed to so sell, as set forth in Schedule II
hereto, or such lesser number as may be requested by the Underwriters.
3. OFFERING BY THE UNDERWRITERS.
It is understood that the Underwriters are to make a public offering of
the Firm Shares as soon as they deem it advisable to do so following execution
of this Agreement. The Firm Shares are to be initially offered to the public at
the public offering price set forth on the cover of the Prospectus. The
Underwriters may from time to time thereafter change the public offering price
and other selling terms. To the extent, if at all, that any Option Shares are
purchased pursuant to Section 2 hereof, the Underwriters will offer them to the
public on the foregoing terms.
10
It is further understood that you will act in accordance with a Master
Agreement Among Underwriters.
4. COVENANTS OF THE COMPANY AND THE SELLING SHAREHOLDERS.
(a) The Company covenants and agrees with the Underwriters that:
(i) The Company will (A) use its best efforts to cause the
Registration Statement to become effective or, if the procedure in Rule
430A of the Rules and Regulations is followed, to prepare and timely
file with the Commission under Rule 424(b) of the Rules and Regulations
a Prospectus in a form approved by the Underwriters containing
information previously omitted at the time of effectiveness of the
Registration Statement in reliance on Rule 430A of the Rules and
Regulations, (B) not file any amendment to the Registration Statement or
supplement to the Prospectus or document incorporated by reference
therein of which the Underwriters shall not previously have been advised
and furnished with a copy or to which the Underwriters shall have
reasonably objected in writing or which is not in compliance with the
Rules and Regulations and (C) file on a timely basis all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission subsequent to the date of the Prospectus and
prior to the termination of the offering of the Shares by the
Underwriters.
(ii) The Company will advise the Underwriters promptly (A) when
the Registration Statement or any post-effective amendment thereto shall
have become effective, (B) of receipt of any comments from the
Commission, (C) of any request of the Commission for amendment of the
Registration Statement or for supplement to the Prospectus or for any
additional information, and (D) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the use of the Prospectus or of the institution of any proceedings for
that purpose. The Company will use its best efforts to prevent the
issuance of any such stop order preventing or suspending the use of the
Prospectus and to obtain as soon as possible the lifting thereof, if
issued.
(iii) The Company will cooperate with the Underwriters in
endeavoring to qualify the Shares for sale under the securities laws of
such jurisdictions as the Underwriters may reasonably have designated in
writing and will make such applications, file such documents, and
furnish such information as may be reasonably required for that purpose,
provided the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction where it is not now so qualified or required to file such a
consent. The Company will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be required to
continue such qualifications in effect for so long a period as the
Underwriters may reasonably request for distribution of the Shares.
11
(iv) The Company will deliver to, or upon the order of, the
Underwriters, from time to time, as many copies of any Preliminary
Prospectus as the Underwriters may reasonably request. The Company will
deliver to, or upon the order of, the Underwriters during the period
when delivery of a Prospectus is required under the Act, as many copies
of the Prospectus in final form, or as thereafter amended or
supplemented, as the Underwriters may reasonably request. The Company
will deliver to the Underwriters at or before the Closing Date, three
signed, xeroxed copies of the Registration Statement and all amendments
thereto including all exhibits filed therewith, and will deliver to the
Underwriters such number of copies of the Registration Statement
(including such number of copies of the exhibits filed therewith that
may reasonably be requested), including any documents incorporated by
reference therein, and of all amendments thereto, as the Underwriters
may reasonably request.
(v) The Company will comply with the Act and the Rules and
Regulations and the Exchange Act and the rules and regulations of the
Commission thereunder, so as to permit the completion of the
distribution of the Shares as contemplated in this Agreement and the
Prospectus. If during the period in which a prospectus is required by
law to be delivered by an Underwriter or dealer, any event shall occur
as a result of which, in the judgment of the Company or in the
reasonable opinion of the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, not misleading, or, if it is necessary at any
time to amend or supplement the Prospectus to comply with any law, the
Company promptly will either (i) prepare and file with the Commission an
appropriate amendment to the Registration Statement or supplement to the
Prospectus or (ii) prepare and file with the Commission an appropriate
filing under the Exchange Act which shall be incorporated by reference
in the Prospectus so that the Prospectus as so amended or supplemented
will not, in the light of the circumstances when it is so delivered, be
misleading, or so that the Prospectus will comply with the law.
(vi) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not
later than 15 months after the effective date of the Registration
Statement, an earnings statement (which need not be audited) in
reasonable detail, covering a period of at least 12 consecutive months
beginning after the effective date of the Registration Statement, which
earnings statement shall satisfy the requirements of Section 11(a) of
the Act and Rule 158 of the Rules and Regulations and will advise you in
writing when such statement has been so made available.
(vii) The Company will, for a period of five (5) years from the
Closing Date, deliver to the Underwriters copies of annual reports and
copies of all other documents, reports and information furnished by the
Company to its stockholders or filed with any securities exchange
pursuant to the requirements of such exchange or with the Commission
pursuant to the Act or the Exchange Act. The Company will deliver to the
Underwriters similar reports with respect to significant subsidiaries,
as that term is defined in the Rules and Regulations, which are not
consolidated in the Company's financial statements.
12
(viii) No offering, sale, short sale or other disposition of any
shares of Common Stock of the Company or other securities convertible
into or exchangeable or exercisable for shares of Common Stock or
derivative of Common Stock (or agreement for such) will be made for a
period of 180 days after the date of the Prospectus, directly or
indirectly, by the Company otherwise than hereunder or with the prior
written consent of BT Alex. Xxxxx Incorporated, except that the Company
may, without such consent (i) grant options pursuant to the Company's
existing employee stock option plans, (ii) issue Common Stock upon the
exercise of outstanding options or warrants to purchase shares of Common
Stock or the conversion of outstanding securities of the Company
convertible into shares of Common Stock on the date of this Agreement or
(iii) issue Common Stock as consideration for acquisitions.
(ix) The Company will use its best efforts to list, subject to
notice of issuance, the Shares on the NYSE.
(x) The Company has caused each executive officer and director
and Selling Shareholder of the Company to furnish to you, on or prior to
the date of this Agreement, a letter or letters, in form and substance
satisfactory to the Underwriters, pursuant to which each such person has
agreed not to offer, sell, sell short or otherwise dispose of any shares
of Common Stock of the Company owned by such person (or as to which such
person has the right to direct the disposition of) or request the
registration for the offer or sale of any of the foregoing for a period
of 180 days after the date of the Prospectus, directly or indirectly,
except with the prior written consent of BT Alex. Xxxxx Incorporated,
provided that the Company may, without such consent, (i) grant options
pursuant to the Company's existing employee stock option plans, (ii)
issue Common Stock upon the exercise of outstanding options or warrants
to purchase shares of Common Stock or the conversion of outstanding
securities of the Company convertible into shares of Common Stock on the
date of this Agreement or (iii) issue Common Stock as consideration for
acquisitions ("Lockup Agreements").
(xi) The Company shall apply the net proceeds of its sale of the
Shares as set forth in the Prospectus.
(xii) The Company shall not invest, or otherwise use, the
proceeds received by the Company from its sale of the Shares in such a
manner as would require the Company or any of the Subsidiaries to
register as an investment company under the 1940 Act.
13
(xiii) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a
registrar for the Common Stock.
(xiv) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation
of the price of any securities of the Company.
(b) Each of the Selling Shareholders covenants and agrees with the
Underwriters that:
(i) No offering, sale, short sale or other disposition of any
shares of Common Stock of the Company or other capital stock of the
Company or other securities convertible, exchangeable or exercisable for
Common Stock or derivative of Common Stock owned by the Selling
Shareholder or request the registration for the offer or sale of any of
the foregoing (or as to which the Selling Shareholder has the right to
direct the disposition of) will be made for a period of 180 days after
the date of this Agreement, directly or indirectly, by such Selling
Shareholder except with the prior consent of BT Alex. Xxxxx
Incorporated.
(ii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 and the Interest and Dividend Tax Compliance
Act of 1983 with respect to the transactions herein contemplated, each
of the Selling Shareholders agrees to deliver to you prior to or at the
Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or
indirectly, any action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any securities of the
Company.
5. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to the
performance of the obligations of the Sellers under this Agreement, including,
without limiting the generality of the foregoing, the following: accounting fees
of the Company; the fees and disbursements of counsel for the Company and the
Selling Shareholders; the cost of printing and delivering to, or as requested
by, the Underwriters copies of the Registration Statement, Preliminary
Prospectuses, the Prospectus, this Agreement; the filing fees of the Commission;
the filing fees and expenses (including disbursements but excluding legal fees
of counsel to the Underwriters) incident to securing any required review by the
NASD of the terms of the sale of the Shares; and the Listing Fee of the NYSE.
The Sellers shall not, however, be required to pay for any of the Underwriters'
14
expenses (other than those related to qualification under NASD regulations
except that, if this Agreement shall not be consummated because the conditions
in Section 6 hereof are not satisfied, or because this Agreement is terminated
by the Underwriters pursuant to Section 11 hereof, or by reason of any failure,
refusal or inability on the part of the Company or the Selling Shareholders to
perform any undertaking or satisfy any condition of this Agreement or to comply
with any of the terms hereof on their part to be performed, unless such failure
to satisfy said condition or to comply with said terms be due to the default or
omission of any Underwriter, then the Company shall reimburse the Underwriters
for reasonable out-of-pocket expenses, including fees and disbursements of
counsel, reasonably incurred in connection with investigating, marketing and
proposing to market the Shares or in contemplation of performing their
obligations hereunder; but the Company and the Selling Shareholders shall not in
any event be liable to any of the Underwriters for damages on account of loss of
anticipated profits from the sale by them of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The several obligations of the Underwriters to purchase the Firm Shares
on the Closing Date and the Option Shares, if any, on the Option Closing Date
are subject to the accuracy, as of the Closing Date or the Option Closing Date,
as the case may be, of the representations and warranties of the Company and the
Selling Shareholders contained herein, and to the performance by the Company and
the Selling Shareholders of their covenants and obligations hereunder and to the
following additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and any and all filings required by Rule 424
and Rule 430A of the Rules and Regulations shall have been made, and any request
of the Commission for additional information (to be included in the Registration
Statement or otherwise) shall have been disclosed to the Underwriters and
complied with to their reasonable satisfaction. No stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall have been taken or,
to the knowledge of the Company, shall be contemplated by the Commission and no
injunction, restraining order, or order of any nature by a Federal or state
court of competent jurisdiction shall have been issued as of the Closing Date or
the Option Closing Date, as the case may be, which would prevent the issuance of
the Shares.
(b) The Underwriters shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of Xxxxxxx & Xxxxx,
L.L.P., counsel for the Company, dated the Closing Date or the Option Closing
Date, as the case may be, addressed to the Underwriters (and stating that it may
be relied upon by counsel to the Underwriters) to the effect that:
15
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own or
lease its properties and conduct its business as described in the
Registration Statement; each of the Subsidiaries has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation,
with corporate power and authority to own or lease its properties
and conduct its business; the Company and each of the
Subsidiaries are duly qualified to transact business in each of
the jurisdictions set forth on a schedule to such opinion; and
the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable; and, to the best of such counsel's
knowledge, the outstanding shares of capital stock of each of the
Subsidiaries are owned by the Company, free and clear of all
liens, encumbrances and equities and claims, and no options,
warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations
into any shares of capital stock of or other ownership interests
in any of the Subsidiaries are outstanding.
(ii) The Company has authorized capital stock as set forth
under the caption "Capitalization" in the Prospectus; the
authorized shares of the Company's Preferred Stock and Common
Stock have been duly authorized; the outstanding shares of the
Company's Common Stock (including the Firm Shares to be sold by
the Selling Shareholders) have been duly authorized and validly
issued and are fully paid and non-assessable; all of the Shares
conform to the description thereof contained in the Prospectus;
the certificates for the Shares, assuming they are in the form
filed with the Commission, are in due and proper form; the Firm
Shares and Option Shares to be sold by the Company pursuant to
this Agreement, have been duly authorized and will be validly
issued, fully paid and non-assessable when issued and paid for as
contemplated by this Agreement; and no preemptive rights of
stockholders exist under statute or under agreements known to
such counsel with respect to any of the Shares or the issue or
sale thereof.
(iii) Except as described in or contemplated by the
Prospectus, to the knowledge of such counsel, there are no
outstanding securities of the Company convertible or exchangeable
into or evidencing the right to purchase or subscribe for any
shares of capital stock of the Company and there are no
outstanding or authorized options, warrants or rights of any
character obligating the Company to issue any shares of its
capital stock or any securities convertible or exchangeable into
or evidencing the right to purchase or subscribe for any shares
of such stock; and except as described in the Prospectus, to the
knowledge of such counsel, no holder of any securities of the
Company or any other person has the right, contractual or
otherwise, which has not been satisfied or effectively waived, to
16
cause the Company to sell or otherwise issue to them, or to
permit them to underwrite the sale of, any of the Shares or the
right to have any shares of Common Stock or other securities of
the Company included in the Registration Statement or the right,
as a result of the filing of the Registration Statement, to
require registration under the Act of any shares of Common Stock
or other securities of the Company.
(iv) The Registration Statement has become effective under
the Act and, to the best of the knowledge of such counsel, no
stop order proceedings with respect thereto have been instituted
or are pending or threatened under the Act.
(v) The Registration Statement, the Prospectus and each
amendment or supplement thereto and document incorporated by
reference therein comply as to form in all material respects with
the requirements of the Act or the Exchange Act, as applicable
and the applicable rules and regulations thereunder (except that
such counsel need express no opinion as to the financial
statements, notes thereto and related schedules and other
financial and statistical information included or incorporated by
reference therein or any information furnished by the
Underwriters for use therein). The conditions for the use of Form
S-3, set forth in the General Instructions thereto have been
satisfied.
(vi) Such counsel does not know of any contracts or
documents required to be filed as exhibits to or incorporated by
reference in the Registration Statement or described in the
Registration Statement or the Prospectus which are not so filed,
incorporated by reference or described as required, and the
descriptions of such contracts and documents required to be
described in the Registration Statement or the Prospectus are
correct in all material respects.
(vii) Such counsel knows of no material legal or
governmental proceedings pending or threatened against the
Company or any of the Subsidiaries except as set forth in the
Prospectus.
(viii) The execution and delivery of this Agreement and
the consummation of the transactions herein contemplated do not
and will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, the
Charter or By-Laws of the Company, or, in any respect material to
the Company and the Subsidiaries, taken as a whole, any agreement
or instrument known to such counsel to which the Company or any
of the Subsidiaries is a party or by which the Company or any of
the Subsidiaries may be bound.
17
(ix) This Agreement has been duly authorized, executed and
delivered by the Company.
(x) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body is necessary in
connection with the execution and delivery of this Agreement and
the consummation of the transactions herein contemplated (other
than as may be required by the NASD as to which such counsel need
express no opinion), except such as have been obtained or made,
specifying the same.
(xi) The Company is not, and will not become, as a result
of the consummation of the transactions contemplated by this
Agreement, and application of the net proceeds therefrom as
described in the Prospectus, required to register as an
investment company under the 1940 Act.
(xii) This Agreement has been duly executed and delivered
by or on behalf of the Selling Shareholders and represent valid
and binding obligations of the Selling Shareholders.
(xiii) Assuming mental capacity to act, each Selling
Shareholder has full legal right, power and authority, and any
approval required by law to sell, assign, transfer and deliver
the portion of the Shares to be sold by such Selling Shareholder.
(xiv) The Custodian Agreement and Power of Attorney has
been duly executed and delivered by each Selling Shareholder.
(xv) The Underwriters (assuming that they are bona fide
purchasers within the meaning of the Uniform Commercial Code)
have acquired good and marketable title to the Shares being sold
by each Selling Shareholder on the Closing Date, free and clear
of all claims, liens, encumbrances and security interests
whatsoever.
In rendering such opinion, Xxxxxxx & Xxxxx, L.L.P. may provide
that its opinion is limited to matters governed by the laws of New York
and the General Corporation law of the State of Delaware, and the
Federal securities laws of the United States and may rely on: (i)
regulatory counsel to the Company with respect to matters related to
regulation of motorcoach operations; (ii) on Xxxxxxx X. Xxxxx, Senior
Vice President and General Counsel of the Company, with respect to the
matters set forth in subparagraph (i) of paragraph (b) of this Section
6, to the extent such matters relate to the Subsidiaries; and (iii) on
counsel to one or more of the Selling Shareholders or on Xxxxxxx X.
Xxxxx, Senior Vice President and General Counsel of the Company, with
18
respect to matters related to the Selling Shareholders, provided that,
in lieu of such reliance, Xxxxxxx & Xxxxx, L.L.P. may provide separate
opinions of any such counsel so long as such opinions are addressed to
the Underwriters, and further provided, that, in each case, Xxxxxxx &
Xxxxx, L.L.P. shall state that they believe that they and the
Underwriters are justified in relying on such other counsel. In addition
to the matters set forth above, the opinion of Xxxxxxx & Xxxxx, L.L.P.
shall also include a statement of belief to the effect that nothing has
come to the attention of such counsel which leads them to believe that
(i) the Registration Statement, at the time it became effective under
the Act (but after giving effect to any modifications incorporated
therein pursuant to Rule 430A under the Act) and, as of the Closing Date
or the Option Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (ii) the Prospectus, or any supplement
thereto, on the date it was filed pursuant to the Rules and Regulations
and as of the Closing Date or the Option Closing Date, as the case may
be, contained an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements, in the light
of the circumstances under which they are made, not misleading (except
that such counsel need express no view as to financial statements,
schedules or other financial and statistical information included or
incorporated by reference therein). With respect to such statement of
belief, Xxxxxxx & Xxxxx, L.L.P. may state that their belief is based
upon the procedures set forth therein, but is without independent check
and verification.
(c) The Underwriters shall have received from Piper & Marbury
L.L.P., counsel for the Underwriters, an opinion dated the Closing Date
or the Option Closing Date, as the case may be, substantially to the
effect specified in subparagraphs (ii), (iii), (iv), (ix) and (xii) of
Paragraph (b) of this Section 6, and that the Company is a duly
organized and validly existing corporation under the laws of the State
of Delaware. In rendering such opinion, Piper & Marbury L.L.P. may rely
as to the matters relating to the laws of the States other than Maryland
and Delaware on the opinions of counsel referred to in Paragraph (b) of
this Section 6. In addition to the matters set forth above, such opinion
shall also include a statement to the effect that nothing has come to
the attention of such counsel which leads them to believe that (i) the
Registration Statement, or any amendment thereto, as of the time it
became effective under the Act (but after giving effect to any
modifications incorporated therein pursuant to Rule 430A under the Act)
as of the Closing Date or the Option Closing Date, as the case may be,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) the Prospectus, or any
supplement thereto, on the date it was filed pursuant to the Rules and
Regulations and as of the Closing Date or the Option Closing Date, as
the case may be, contained an untrue statement of a material fact or
omitted to state a material fact, necessary in order to make the
statements, in the light of the circumstances under which they are made,
not misleading (except that such counsel need express no view as to
financial statements,
19
schedules and statistical information therein). With respect to such
statement, Piper & Marbury L.L.P. may state that their belief is based
upon the procedures set forth therein, but is without independent check
and verification.
(d) The Underwriters shall have received, on the date hereof, the
Closing Date and the Option Closing Date, as the case may be, letters
dated the date hereof, the Closing Date or the Option Closing Date, as
the case may be, in form and substance satisfactory to the Underwriters,
of Xxxxxx Xxxxxxxx LLP and Xxxxxxxx & Rishebarger PLLC confirming that
they are independent public accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder and
stating that, in their opinion, the financial statements and schedules
examined by them and included or incorporated by reference in the
Registration Statement comply in form in all material respects with the
applicable accounting requirements of the Act and the related published
Rules and Regulations; and containing such other statements and
information as is ordinarily included in accountants' "comfort letters"
to Underwriters with respect to such financial statements and certain
financial and statistical information contained or incorporated by
reference in the Registration Statement and Prospectus.
(e) The Underwriters shall have received on the Closing Date or
the Option Closing Date, as the case may be, a certificate or
certificates of the Company and signed by the Chief Executive Officer
and the Chief Financial Officer of the Company to the effect that, as of
the Closing Date or the Option Closing Date, as the case may be:
(i) The Registration Statement has become effective under
the Act and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for
such purpose have been taken or are, to his knowledge,
contemplated by the Commission;
(ii) The representations and warranties of the Company
contained in Section 1 hereof are true and correct in all
material respects as of the Closing Date or the Option Closing
Date, as the case may be;
(iii) All filings required to have been made pursuant to
Rules 424 or 430A under the Act have been made;
(iv) As of the effective date of the Registration
Statement, the statements contained in the Registration Statement
were true and correct in all material respects, and such
Registration Statement and Prospectus did not omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein not misleading, and since the
effective date of the Registration Statement, no event has
occurred which should have been set forth in a
20
supplement to or an amendment of the Prospectus which has not been so
set forth in such supplement or amendment; and
(v) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, there has not
been any material adverse change or any development involving a
prospective material adverse change in or affecting the
condition, financial or otherwise, of the Company or any of the
Subsidiaries or the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise) or
prospects of the Company or any of the Subsidiaries, whether or
not arising in the ordinary course of business, except as set
forth in, or contemplated by, the Prospectus or as described in
such certificate.
(f) The Company and the Selling Shareholders shall have furnished
to the Underwriters such further certificates and documents confirming
the representations and warranties, covenants and conditions contained
herein and related matters as the Underwriters may reasonably have
requested.
(g) The Firm Shares and Option Shares, if any, shall have been
approved for designation upon notice of issuance on the NYSE.
(h) The Lockup Agreements described in Section 4(a)(x) shall be
in full force and effect.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to the Underwriters and to Piper & Marbury
L.L.P., counsel for the Underwriters, in their reasonable judgment.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Underwriters by notifying the Company and the Selling Shareholders of such
termination in writing or by telegram at or prior to the Closing Date or the
Option Closing Date, as the case may be.
In such event, the Company, the Selling Shareholders and the
Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE SELLERS.
The obligations of the Sellers to sell and deliver the portion of the
Shares required to be delivered as and when specified in this Agreement are
subject to the conditions that at
21
the Closing Date or the Option Closing Date,
as the case may be, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
22
8. INDEMNIFICATION.
(a) The Company and the Selling Shareholders, jointly and
severally, agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of
the Act, against any losses, claims, damages or liabilities to which
such Underwriter or any such controlling person may become subject under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of
or are based upon (i) any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and will reimburse each Underwriter
and each such controlling person upon demand for any legal or other
expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending any such loss,
claim, damage or liability, action or proceeding or in responding to a
subpoena or governmental inquiry related to the offering of the Shares,
whether or not such Underwriter or controlling person is a party to any
action or proceeding; provided, however, that the Company and the
Selling Shareholders will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement, or omission or
alleged omission made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company
by or through the Underwriters specifically for use in the preparation
thereof. In no event, however, shall the liability of any Selling
Shareholder for indemnification under this Section 8(a) exceed the
lesser of (i) that proportion of the total of such losses, claims,
damages or liabilities indemnified against equal to the proportion that
the Shares being sold by such Selling Shareholders bears to the total
Shares sold hereunder or (ii) the proceeds received by such Selling
Shareholder from the Underwriters in the offering. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally and not jointly will indemnify and
hold harmless the Company, each of its directors, each of its officers
who has signed the Registration Statement, each of the Selling
Shareholders and each person, if any, who controls the Company or a
Selling Shareholder within the meaning of the Act against any losses,
claims, damages or liabilities to which the Company or any such
director, officer, Selling Shareholder or controlling person may become
subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto or (ii) the omission or the alleged omission to
state therein a material fact required to be stated therein or
23
necessary to make the statements therein not misleading in the light of
the circumstances under which they were made; and will reimburse any
legal or other expenses reasonably incurred by the Company or any such
director, officer, Selling Shareholder or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that each
Underwriter will be liable in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission has been made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or such amendment
or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Underwriters
specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability which such Underwriter
may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to this Section 8, such person
(the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a) or (b) shall be available
to any party who shall fail to give notice as provided in this Section
8(c) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was materially
prejudiced by the failure to give such notice, but the failure to give
such notice shall not relieve the indemnifying party or parties from any
liability which it or they may have to the indemnified party for
contribution or otherwise than on account of the provisions of Section
8(a) or (b). In case any such proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel at its own expense.
Notwithstanding the foregoing, the indemnifying party shall pay as
incurred (or within 30 days of presentation) the fees and expenses of
the counsel retained by the indemnified party in the event (i) the
indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel, (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iii) the indemnifying
party shall have failed to assume the defense and employ counsel
acceptable to the indemnified party within a reasonable period of time
after notice of commencement of the action. It is understood that the
indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
24
indemnified parties. Such firm shall be designated in writing by you in
the case of parties indemnified pursuant to Section 8(a) and by the
Company in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
In addition, the indemnifying party will not, without the prior written
consent of the indemnified party, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action or
proceeding of which indemnification may be sought hereunder (whether or
not any indemnified party is an actual or potential party to such claim,
action or proceeding) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action or proceeding.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or (b) above (other than by reason of the exceptions
provided in such paragraphs) in respect of any losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Shareholders on the one
hand and the Underwriters on the other from the offering of the Shares.
If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law then each indemnifying party
shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the
Selling Shareholders on the one hand and the Underwriters on the other
in connection with the statements, omissions or breaches of
representations and warranties which resulted in such losses, claims,
damages or liabilities, (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Shareholders on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Shareholders bears to
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and the
Selling Shareholders on the one hand or the Underwriters on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
25
The Company, the Selling Shareholders and the Underwriters agree
that it would not be just and equitable if contributions pursuant to
this Section 8(d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 8(d). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 8(d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), (i) no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Shares
purchased by such Underwriter, (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation and (iii) no Selling Shareholder shall be
required to contribute any amount in excess of the lesser of (A) that
proportion of the total of such losses, claims, damages or liabilities
indemnified or contributed against equal to the proportion that the
Shares being sold by such Selling Shareholder bears to the total Shares
sold hereunder or (B) the proceeds received by such Selling Shareholder
from the Underwriters in the offering. The Underwriters' obligations in
this Section 8(d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this
Section 8 hereby consents to the jurisdiction of any court having
jurisdiction over any other contributing party, agrees that process
issuing from such court may be served upon him or it by any other
contributing party and consents to the service of such process and
agrees that any other contributing party may join him or it as an
additional defendant in any such proceeding in which such other
contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or
contribution under this Section 8 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 8 and the representations and
warranties of the Company and the Selling Shareholders set forth in this
Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, the Company, its
directors or officers, any Selling Shareholder or any persons
controlling the Company or any Selling Shareholder, (ii) acceptance of
any Shares and payment therefor hereunder and (iii) any termination of
this Agreement. A successor to any Underwriter, or to the Company, its
directors or
26
officers, any Selling Shareholder, or any person controlling the Company
or any Selling Shareholder, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this
Section 8.
9. DEFAULT BY UNDERWRITERS.
If on the Closing Date or the Option Closing Date, as the case may be,
any Underwriter shall fail to purchase and pay for any portion of the Shares
which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the Company or any
Selling Shareholder), the other Underwriters, shall use their reasonable efforts
to procure within 36 hours thereafter one or more other underwriters to purchase
from the Company such amounts as may be agreed upon and upon the terms set forth
herein, the Firm Shares or Option Shares, as the case may be, which the
defaulting Underwriter failed to purchase. If during such 36 hours the other
Underwriters shall not have procured such other underwriters, or any others, to
purchase the Firm Shares or Option Shares, as the case may be, agreed to be
purchased by the defaulting Underwriter, then (a) if the aggregate number of
shares with respect to which such default shall occur does not exceed 10% of the
Firm Shares or Option Shares, as the case may be, covered hereby, the other
Underwriters shall be obligated, severally, in proportion to the respective
numbers of Firm Shares or Option Shares, as the case may be, which they are
obligated to purchase hereunder, to purchase the Firm Shares or Option Shares,
as the case may be, which such defaulting Underwriter failed to purchase or (b)
if the aggregate number of Firm Shares or Option Shares, as the case may be,
with respect to which such default shall occur exceeds 10% of the Firm Shares or
Option Shares, as the case may be, covered hereby, the Company or the other
Underwriters will have the right, by written notice given within the next
36-hour period to the parties to this Agreement, to terminate this Agreement
without liability on the part of the other Underwriters or of the Company except
to the extent provided in Section 8 hereof. In the event of a default by any
Underwriter, as set forth in this Section 9, the Closing Date or Option Closing
Date, as the case may be, may be postponed for such period, not exceeding seven
(7) days, as the other Underwriters may determine in order that the required
changes in the Registration Statement or in the Prospectus or in any other
documents or arrangements may be effected. The term "Underwriter" includes any
person substituted for a defaulting Underwriter. Any action taken under this
Section 9 shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. NOTICES.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or telegraphed
and confirmed as follows: if to the Underwriters, to BT Alex. Xxxxx
Incorporated, Xxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X.
Xxxxx, Managing Director, with a copy to BT Alex. Xxxxx Incorporated, Xxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 Attention: General Counsel; and if to the
Company, the Selling Shareholders or the Custodian; to Coach USA, Inc., Xxx
Xxxxxxxx, Xxxxx
00
000, Xxxxxxx, Xxxxx 00000-0000, Attention: Xxxxxxx X. Xxxxxxxxx,
Chief Executive Officer, with copies to Xxxxxxx & Xxxxx, L.L.P., 0000 Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention: Xxxxx X. Xxxxxx, Esq. and
Xxxxxxx X. Xxxxx, Senior Vice President and General Counsel, Coach USA, Inc.,
Xxx Xxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000-0000.
11. TERMINATION.
This Agreement may be terminated by you by notice to the Sellers as
follows:
(a) at any time prior to the earlier of (i) the time the Shares
are released by you for sale by notice to the Underwriters or (ii) 11:30
a.m. on the first business day following the date of this Agreement;
(b) at any time prior to the Closing Date if any of the following
has occurred: (i) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any material
adverse change or any development involving a prospective material
adverse change in or affecting the condition, financial or otherwise, of
the Company and the Subsidiaries taken as a whole or the earnings,
business, management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and the
Subsidiaries taken as a whole, whether or not arising in the ordinary
course of business, (ii) any outbreak or escalation of hostilities or
declaration of war or national emergency or other national or
international calamity or crisis or change in economic or political
conditions if the effect of such outbreak, escalation, declaration,
emergency, calamity, crisis or change on the financial markets of the
United States would, in your reasonable judgment, make it impracticable
to market the Shares or to enforce contracts for the sale of the Shares,
(iii) suspension of trading in securities generally on the NYSE or the
American Stock Exchange or limitation on prices (other than limitations
on hours or numbers of days of trading) for securities on either such
Exchange, (iv) the enactment, publication, decree or other promulgation
of any statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely
affects or may materially and adversely affect the business or
operations of the Company, (v) declaration of a banking moratorium by
United States or New York State authorities, (vi) the suspension of
trading of the Company's Common Stock by the Commission on the NYSE or
(vii) the taking of any action by any governmental body or agency in
respect of its monetary or fiscal affairs which in your reasonable
opinion has a material adverse effect on the securities markets in the
United States; or
(c) as provided in Sections 6 and 9 of this Agreement.
28
12. SUCCESSORS.
This Agreement has been and is made solely for the benefit of the
Underwriters, the Company and the Selling Shareholders and their respective
successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will
have any right or obligation hereunder. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign merely because of such
purchase.
13. INFORMATION PROVIDED BY UNDERWRITERS.
The Company, the Selling Shareholders and the Underwriters acknowledge
and agree that the only information furnished or to be furnished by any
Underwriter to the Company for inclusion in any Prospectus or the Registration
Statement consists of the information set forth in the last paragraph on the
front cover page (insofar as such information relates to the Underwriters),
legends required by Item 502(d) of Regulation S-K under the Act and the
information under the caption "Underwriting" in the Prospectus.
14. MISCELLANEOUS.
The reimbursement, indemnity and contribution agreements contained in
this Agreement and the representations and warranties of the Company and the
Selling Shareholders set forth in this Agreement shall remain operative and in
full force and effect, regardless of (i) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter, the Company, its
directors or officers, the Selling Shareholders or any persons controlling the
Company or the Selling Shareholders, (ii) acceptance of any Shares and payment
therefor hereunder and (iii) any termination of this Agreement.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware.
29
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Shareholders and the Underwriters in accordance with its terms.
Very truly yours,
COACH USA, INC.
By _______________________________
Xxxxxxx X. Xxxxxxxxx,
Chief Executive Officer
SELLING SHAREHOLDERS:
By _______________________________
Xxxxxxx X. Xxxxx,
Attorney-in-Fact
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
BT ALEX. XXXXX INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By: BT Alex. Xxxxx Incorporated
By ___________________________________
Authorized Officer
30
SCHEDULE I
SCHEDULE OF UNDERWRITERS
Number of Firm Shares
UNDERWRITER TO BE PURCHASED
BT Alex. Xxxxx Incorporated..............................
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation......
NationsBanc Xxxxxxxxxx Securities LLC.................... -----
-----
Total...................................... 4,000,000
31
SCHEDULE II
SCHEDULE OF SELLING SHAREHOLDERS
Number of Firm Shares
SELLING SHAREHOLDER TO BE SOLD
--------------------- -----------------------
Total 2,000,000
32
