Portfolio Recovery Associates, Inc.
3,470,000 Shares Common Stock(1)
UNDERWRITING AGREEMENT
_______________, 2002
Xxxxxxx Xxxxx & Company, L.L.C.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
As Representatives of the Several
Underwriters Named in Schedule A
c/o Xxxxxxx Xxxxx & Company, L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
SECTION 1. Introductory. Portfolio Recovery Associates, Inc., a
Delaware corporation ("Company"), has an authorized capital stock consisting of
2,000,000 shares of Preferred Stock, $0.01 par value, of which no shares were
outstanding as of the date hereof and 30,000,000 shares of common stock, $0.01
par value ("Common Stock"), of which ____________ shares were outstanding as of
the date hereof. The Company proposes to issue and sell 3,470,000 shares of its
authorized but unissued Common Stock (the "Firm Shares") to the several
underwriters named in Schedule A as it may be amended by the Pricing Agreement
hereinafter defined ("Underwriters"), who are acting severally and not jointly.
In addition, a certain stockholder of the Company (as named in Schedule B, the
"Selling Stockholder") proposes to grant to the Underwriters an option to
purchase up to 520,500 additional shares of Common Stock ("Option Shares") as
provided in Section 5 hereof. The Firm Shares and, to the extent such option is
exercised, the Option Shares, are hereinafter collectively referred to as the
"Shares." Xxxxxxx Xxxxx & Company, L.L.C. has the authority, subject to the
terms and conditions contained herein, to act on behalf of the several
Underwriters and the Representatives hereunder.
You have advised the Company and the Selling Stockholder that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon as you deem advisable after the registration statement
hereinafter referred to becomes effective, if it has not yet become effective,
and the Pricing Agreement hereinafter defined has been executed and delivered.
Prior to the purchase and public offering of the Shares by the several
Underwriters, the Company, the Selling Stockholder and the Representatives,
acting on behalf of the several Underwriters, shall enter into an
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(1) Plus an option to acquire up to 520,500 additional shares to cover
overallotments.
agreement substantially in the form of Exhibit A hereto ("Pricing Agreement").
The Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Company, the Selling Stockholder and the
Representatives and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the Shares will be governed by this Agreement,
as supplemented by the Pricing Agreement. From and after the date of the
execution and delivery of the Pricing Agreement, this Agreement shall be deemed
to incorporate the Pricing Agreement.
The Company and the Selling Stockholder hereby confirm their agreements
with the Underwriters as follows:
SECTION 2. Representations and Warranties of the Company. The Company
represents and warrants to the several Underwriters and the Selling Stockholder
that:
(a) A registration statement on Form S-1 (File No. 333-99225)
and a related preliminary prospectus with respect to the Shares have
been prepared and filed with the Securities and Exchange Commission
("Commission") by the Company in conformity in all material respects
with the requirements of the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"1933 Act;" unless indicated to the contrary, all references herein to
specific rules are rules promulgated under the 0000 Xxx); and the
Company has so prepared and has filed such amendments thereto, if any,
and such amended preliminary prospectuses as may have been required to
the date hereof and will file such additional amendments thereto and
such amended prospectuses as may hereafter be required. There have been
or will promptly be delivered to you a signed copy of such registration
statement and amendments, a copy of each exhibit filed therewith, and
conformed copies of such registration statement and amendments (but
without exhibits) and of the related preliminary prospectus or
prospectuses and final forms of prospectus for each of the Underwriters.
For purposes of this Agreement, delivery or furnishing of certain
documents may take the form of access to such documents as filed with
the Commission using XXXXX and available on the Commission's website at
xxx.xxx.xxx.
Such registration statement (as amended, if applicable) at
the time it becomes effective and the prospectus constituting a part
thereof (including the information, if any, deemed to be part thereof
pursuant to Rule 430A(b) and/or Rule 434), as from time to time amended
or supplemented, are hereinafter referred to as the "Registration
Statement," and the "Prospectus," respectively, except that if any
revised prospectus shall be provided to the Underwriters by the Company
for use in connection with the offering of the Shares which differs from
the Prospectus on file at the Commission at the time the Registration
Statement became or becomes effective (whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule
424(b)), the term Prospectus shall refer to such revised prospectus from
and after the time it was provided to the Underwriters for such use. If
the Company elects to rely on Rule 434 of the 1933 Act, all references
to "Prospectus" shall be deemed to include, without limitation, the form
of prospectus and the term
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sheet, taken together, provided to the Underwriters by the Company in
accordance with Rule 434 of the 1933 Act ("Rule 434 Prospectus"). Any
registration statement (including any amendment or supplement thereto or
information which is deemed part thereof) filed by the Company under
Rule 462(b) ("Rule 462(b) Registration Statement") shall be deemed to be
part of the "Registration Statement" as defined herein, and any
prospectus (including any amendment or supplement thereto or information
which is deemed part thereof) included in such registration statement
shall be deemed to be part of the "Prospectus", as defined herein, as
appropriate. The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder are hereinafter
collectively referred to as the "Exchange Act."
(b) The Commission has not issued any order preventing or
suspending the use of any preliminary prospectus, and each preliminary
prospectus has conformed in all material respects with the requirements
of the 1933 Act and, as of its date, has not included any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein not misleading; and when the
Registration Statement became or becomes effective, and at all times
subsequent thereto, up to the First Closing Date or the Second Closing
Date hereinafter defined, as the case may be, the Registration
Statement, including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule
430A(b), if applicable, and the Prospectus and any amendments or
supplements thereto, contained or will contain all statements that are
required to be stated therein in accordance with the 1933 Act and in all
material respects conformed or will in all material respects conform to
the requirements of the 1933 Act, and neither the Registration Statement
nor the Prospectus, nor any amendment or supplement thereto, included or
will include any untrue statement of a material fact or omitted or will
omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representation or warranty as to information contained
in or omitted from any preliminary prospectus, the Registration
Statement, 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 through the
Representatives specifically for use in the preparation thereof or the
Selling Stockholder expressly for use in the preparation thereof.
(c) The Company and its subsidiaries have been duly
incorporated or formed and are validly existing as corporations or
limited liability companies in good standing under the laws of their
respective places of incorporation or formation, as the case may be,
with requisite power and authority to own their properties and conduct
their business as described in the Prospectus; the Company and each of
its subsidiaries are duly qualified to do business as foreign
corporations or limited liability companies under the laws of, and are
in good standing as such in, each jurisdiction in which they own or
lease substantial properties, have an office, or in which substantial
business is conducted and such qualification is required except in any
such case where the failure to so qualify or be in good standing would
not have a material adverse effect upon the Company and its subsidiaries
taken as a whole (a
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"Material Adverse Effect"); and no proceeding of which the Company has
knowledge has been instituted in any such jurisdiction, revoking,
limiting or curtailing, or seeking to revoke, limit or curtail, such
power and authority or qualification.
The making and performance of the Equity Exchange
Agreement dated as of _____________, 2002 (the "Equity Exchange
Agreement") by and among Portfolio Recovery Associates, L.L.C., a
Delaware limited liability company ("PRA LLC"), and the Company was duly
authorized by all necessary limited liability company action and, after
giving effect to all consents or waivers obtained in a timely manner,
did not violate any provision of PRA LLC's certificate of formation or
operating agreement, did not result in the breach, or was not in
contravention, of any provision of any agreement set forth or required
to be set forth as an exhibit to the Registration Statement or any
order, rule or regulation applicable to PRA LLC of any court or
regulatory body, administrative agency or other governmental body having
jurisdiction over PRA LLC or any of its properties, or any order of any
court or governmental agency or authority entered in any proceeding to
which PRA LLC was or is a party or by which it was or is bound, except
for such violations, breaches or contraventions which would not have a
Material Adverse Effect. No consent, approval, authorization or other
order of any court, regulatory body, administrative agency or other
governmental body was required for the execution and delivery of the
Equity Exchange Agreement or the consummation of the transactions
contemplated therein, other than consents, approvals or authorizations
obtained prior to the consummation thereof.
(d) The Company owns directly or indirectly 100 percent of the
issued and outstanding limited liability company interests of each of
its subsidiaries, free and clear of any claims, liens, encumbrances or
security interests and all of such limited liability company interests
have been duly authorized and validly issued and are fully paid and
nonassessable.
(e) The issued and outstanding shares of capital stock of the
Company as set forth in the Prospectus have been duly authorized and
validly issued, are fully paid and nonassessable, and conform to the
description thereof contained in the Prospectus.
(f) The Shares to be sold by the Company have been duly
authorized and when issued, delivered and paid for pursuant to this
Agreement, will be validly issued, fully paid and nonassessable, and
will conform to the description thereof contained in the Prospectus.
(g) The making and performance by the Company of this
Agreement and the Pricing Agreement have been duly authorized by all
necessary corporate action and will not violate any provision of the
Company's charter or bylaws and will not result in the breach, or be in
contravention, of any provision of any agreement, franchise, license,
indenture, mortgage, deed of trust, or other instrument to which the
Company or any subsidiary is a party or by which the Company, any
subsidiary or the property of any of them may be bound or affected, or
any order, rule or regulation
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applicable to the Company or any subsidiary of any court or regulatory
body, administrative agency or other governmental body having
jurisdiction over the Company or any subsidiary or any of their
respective properties, or any order of any court or governmental agency
or authority entered in any proceeding to which the Company or any
subsidiary was or is now a party or by which it is bound, except for
such violations, breaches or defaults which would not have a Material
Adverse Effect. No consent, approval, authorization or other order of
any court, regulatory body, administrative agency or other governmental
body is required for the execution and delivery of this Agreement or the
Pricing Agreement or the consummation of the transactions contemplated
herein or therein, except for compliance with the 1933 Act and blue sky
laws applicable to the public offering of the Shares by the several
Underwriters and clearance of such offering with the National
Association of Securities Dealers, Inc. ("NASD"). This Agreement has
been duly executed and delivered by the Company.
(h) The accountants who have expressed their opinions with
respect to certain of the financial statements included in the
Registration Statement are independent accountants as required by the
1933 Act.
(i) The consolidated financial statements of the Company
included in the Registration Statement present fairly the consolidated
financial position of the Company as of the respective dates of such
financial statements, and the consolidated statements of operations and
cash flows of the Company for the respective periods covered thereby,
all in conformity with generally accepted accounting principles
consistently applied throughout the periods involved, except as
disclosed in the Prospectus. The financial information set forth in the
Prospectus under "Selected Consolidated Financial Data" presents fairly
on the basis stated in the Prospectus, the information set forth
therein.
The pro forma information included in the Prospectus
presents fairly the information shown therein, have been prepared in
accordance with generally accepted accounting principles and the
Commission's rules and guidelines with respect to pro forma information,
have been properly compiled on the pro forma basis 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 under the circumstances.
(j) Neither the Company nor any subsidiary is in violation of
its organizational documents or in default under any consent decree, or
in default with respect to any material provision of any lease, loan
agreement, franchise, license, permit or other contract obligation to
which it is a party; and there does not exist any state of facts which
constitutes an event of default as defined in such documents or which,
with notice or lapse of time or both, would constitute such an event of
default, in each case, except for violations or defaults which neither
singly nor in the aggregate would have a Material Adverse Effect.
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(k) There are no material legal or governmental proceedings
pending, or to the Company's knowledge, threatened to which the Company
or any subsidiary is or may be a party or of which material property
owned or leased by the Company or any subsidiary is or may be the
subject, or related to environmental or discrimination matters, in each
case, which are not disclosed in the Prospectus, or which question the
validity of this Agreement or the Pricing Agreement or any action taken
or to be taken pursuant hereto or thereto.
(l) There are no holders of securities of the Company having
rights to registration thereof or preemptive rights to purchase Common
Stock.
(m) The Company and each of its subsidiaries have good and
marketable title to all the properties and assets reflected as owned in
the financial statements hereinabove described (or elsewhere in the
Prospectus), subject to no lien, mortgage, pledge, charge or encumbrance
of any kind except those, if any, reflected in such financial statements
(or elsewhere in the Prospectus) or which are not material to the
Company and its subsidiaries taken as a whole. The Company and each of
its subsidiaries hold their respective leased properties which are
material to the Company and its subsidiaries taken as a whole under
valid and binding leases.
(n) The Company has not taken and will not take during the
offering period (including any time after the effective date of the
Registration Statement during which the Underwriters are deemed to be
making a public offering), directly or indirectly, any action designed
to or which has constituted or which might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(o) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, and except as
contemplated by the Prospectus, the Company and its subsidiaries, taken
as a whole, have not incurred any material liabilities or obligations,
direct or contingent, nor entered into any material transactions not in
the ordinary course of business and there has not been any material
adverse change in their condition (financial or otherwise) or results of
operations nor any material change in their capital stock, short-term
debt or long-term debt.
(p) There is no material document of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement which is not described
or filed as required.
(q) The Company together with its subsidiaries owns and
possesses all right, title and interest in and to, or has duly licensed
from third parties, all patents, patent rights, trade secrets,
inventions, know-how, trademarks, trade names, copyrights, service marks
and other proprietary rights ("Trade Rights") material to the business
of the Company and each of its subsidiaries taken as a
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whole. Neither the Company nor any of its subsidiaries has received any
notice of infringement, misappropriation or conflict from any third
party as to such material Trade Rights which has not been resolved or
disposed of and neither the Company nor any of its subsidiaries has
infringed, misappropriated or otherwise conflicted with material Trade
Rights of any third parties, which infringement, misappropriation or
conflict would have a Material Adverse Effect.
(r) The conduct of the business of the Company and each of its
subsidiaries is in compliance in all respects with applicable federal,
state, local and foreign laws and regulations, except where the failure
to be in compliance would not have a Material Adverse Effect.
(s) All offers and sales of the Company's capital stock or
membership interests of its subsidiaries prior to the date hereof were
at all relevant times exempt from the registration requirements of the
1933 Act and were duly registered with or the subject of an available
exemption from the registration requirements of the applicable state
securities or blue sky laws.
(t) The Company has filed all necessary federal and state
income and franchise tax returns and has paid all taxes shown as due
thereon, and there is no tax deficiency that has been, or to the
knowledge of the Company might be, asserted against the Company or any
of its properties or assets that would or could be expected to have a
Material Adverse Effect.
(u) The Company has filed a registration statement pursuant to
Section 12(g) of the Exchange Act to register the Common Stock
thereunder, has filed an application to list the Shares on the Nasdaq
National Market, and has received notification that the listing has been
approved, subject to notice of issuance or sale of the Shares, as the
case may be.
(v) The Company is not, and does not intend to conduct its
business in a manner in which it would become, an "investment company"
as defined in Section 3(a) of the Investment Company Act of 1940, as
amended ("Investment Company Act").
SECTION 3. Representations, Warranties and Covenants of the Selling
Stockholder.
(a) The Selling Stockholder represents and warrants to, and
agrees with, the Company and the Underwriters that:
(i) The Selling Stockholder has, and on the First
Closing Date or the Second Closing Date hereinafter defined, as
the case may be, will have, valid marketable title to the Shares
proposed to be sold by the Selling Stockholder hereunder on such
date and full right, power and authority to enter into this
Agreement and the Pricing Agreement and to sell, assign, transfer
and deliver such Shares hereunder, free and clear of all voting
trust arrangements, liens, encumbrances, equities, claims and
community property rights; and upon
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delivery of and payment for such Shares hereunder, the
Underwriters will acquire valid marketable title thereto, free
and clear of all voting trust arrangements, liens, encumbrances,
equities, claims and community property rights other than those
imposed upon or consented to in writing by the Representatives.
(ii) The Selling Stockholder has not taken and will not
take during the offering period (including any time after the
effective date of the Registration Statement during which the
Underwriters are deemed to be making a public offering), directly
or indirectly, any action designed to or which might be
reasonably expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares.
(iii) [Each preliminary prospectus, solely with respect
to information provided by the Selling Stockholder for inclusion
therein as of its date relating to the Selling Stockholder (it
being understood such information does not include information
relating to the operations of the Company), has not included any
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein not
misleading; and the Registration Statement at the time of
effectiveness, and at all times subsequent thereto, until the
First Closing Date or the Second Closing Date hereinafter
defined, as the case may be, neither the Registration Statement
nor the Prospectus, nor any amendment or supplement thereto,
solely with respect to information relating to the Selling
Stockholder (it being understood such information does not
include information relating to the operations of the Company)
provided by the Selling Stockholder for inclusion therein,
included or will include any untrue statement of a material fact
or omitted or will omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading.]
(iv) The Selling Stockholder agrees with the Company
and the Underwriters not to, directly or indirectly, (i) offer,
sell (including "short" selling), assign, transfer, encumber,
pledge, contract to sell, grant an option to purchase, establish
an open "put equivalent position" within the meaning of Rule
16a-1(h) under the Exchange Act, or otherwise dispose of any
shares of Common Stock or securities convertible or exchangeable
into, or exercisable for, Common Stock held of record or
beneficially owned (within the meaning of Rule 13d-3 under the
Exchange Act); or (ii) enter any swap or other arrangement that
transfers all or a portion of the economic consequences
associated with the ownership of any Common Stock for a period of
180 days after this Agreement becomes effective without the prior
written consent of the Representatives.
In order to document the Underwriter's compliance with the reporting and
withholding provisions of the Internal Revenue Code of 1986, as amended, with
respect to the transactions herein contemplated, the Selling Stockholder agrees
to deliver to you prior to or on the First Closing Date, as hereinafter defined,
a properly completed and executed United States Treasury Department Form W-8 or
W-9 (or other applicable form of statement specified by Treasury Department
regulations in lieu thereof).
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SECTION 4. Representations and Warranties of the Underwriters. The
Representatives, on behalf of the several Underwriters, represent and warrant to
the Company and the Selling Stockholder that the information set forth (a) on
the cover page of the Prospectus with respect to price, underwriting discount
and terms of the offering and (b) in all paragraphs under "Underwriting" in the
Prospectus, except the last sentence of paragraph 5 and paragraphs 8, 14 and 15
(other than the last sentence thereof) thereof, was furnished to the Company by
and on behalf of the Underwriters for use in connection with the preparation of
the Registration Statement and is correct and complete in all material respects.
SECTION 5. Purchase, Sale and Delivery of Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters named in Schedule A hereto, and the Underwriters agree, severally
and not jointly, to purchase 3,470,000 Firm Shares from the Company at the price
per share set forth in the Pricing Agreement. The obligation of each Underwriter
to the Company shall be to purchase from the Company that number of full shares
which (as nearly as practicable, as determined by you) bears to 3,470,000, the
same proportion as the number of Shares set forth opposite the name of such
Underwriter in Schedule A hereto bears to the total number of Firm Shares to be
purchased by all Underwriters under this Agreement. The initial public offering
price and the purchase price shall be set forth in the Pricing Agreement.
At 9:00 A.M., Chicago Time, on the fourth business day, if permitted
under Rule 15c6-1 under the Exchange Act, (or the third business day if required
under Rule 15c6-1 under the Exchange Act or unless postponed in accordance with
the provisions of Section 12) following the date the Registration Statement
becomes effective (or, if the Company has elected to rely upon Rule 430A, the
fourth business day, if permitted under Rule 15c6-1 under the Exchange Act, (or
the third business day if required under Rule 15c6-1 under the Exchange Act)
after execution of the Pricing Agreement), or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives and
the Company, the Company will deliver to you at the offices of counsel for the
Company or through the facilities of The Depository Trust Company for the
accounts of the several Underwriters, certificates representing the Firm Shares
to be sold by them, respectively, against payment of the purchase price therefor
by delivery of federal or other immediately available funds, by wire transfer or
otherwise, to the Company. Such time of delivery and payment is herein referred
to as the "First Closing Date." The certificates for the Firm Shares so to be
delivered will be in such denominations and registered in such names as you
request by notice to the Company prior to 10:00 A.M., Chicago Time, on the
second business day preceding the First Closing Date, and will be made available
in New York City at the Company's expense for checking and packaging in New York
City by the Representatives at 10:00 A.M., Chicago Time, on the business day
preceding the First Closing Date. Payment for the Firm Shares so to be delivered
shall be made at the time and in the manner described above at the offices of
counsel for the Underwriters.
In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Selling Stockholder hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to an aggregate of
520,500 Option Shares, at the
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same purchase price per share to be paid for the Firm Shares, for use solely in
covering any overallotments made by the Underwriters in the sale and
distribution of the Firm Shares. The option granted hereunder may be exercised
at any time (but not more than once) within 30 days after the date of the
initial public offering upon notice by you to the Company and the Selling
Stockholder setting forth the aggregate number of Option Shares as to which the
Underwriters are exercising the option, the names and denominations in which the
certificates for such shares are to be registered and the time and place at
which such certificates will be delivered. Such time of delivery (which may not
be earlier than the First Closing Date), being herein referred to as the "Second
Closing Date," shall be determined by you, but if at any time other than the
First Closing Date, shall not be earlier than three nor later than 10 full
business days after delivery of such notice of exercise. The number of Option
Shares to be purchased by each Underwriter shall be determined by multiplying
the number of Option Shares to be sold by the Selling Stockholder pursuant to
such notice of exercise by a fraction, the numerator of which is the number of
Firm Shares to be purchased by such Underwriter as set forth opposite its name
in Schedule A and the denominator of which is the total number of Firm Shares
(subject to such adjustments to eliminate any fractional share purchases as you
in your absolute discretion may make). Certificates for the Option Shares will
be made available at the Company's expense for checking and packaging in New
York City at 10:00 A.M., Chicago Time, on the business day preceding the Second
Closing Date. The manner of payment for and delivery of the Option Shares shall
be the same as for the Firm Shares as specified in the preceding paragraph.
You have advised the Company and the Selling Stockholder that each
Underwriter has authorized you to accept delivery of its Shares, to make payment
and to receipt therefor. You, individually and not as the Representatives of the
Underwriters, may make payment for any Shares to be purchased by any Underwriter
whose funds shall not have been received by you by the First Closing Date or the
Second Closing Date, as the case may be, for the account of such Underwriter,
but any such payment shall not relieve such Underwriter from any obligation
hereunder.
SECTION 6. Covenants of the Company. The Company covenants and
agrees that:
(a) The Company will advise you and the Selling Stockholder
promptly of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of the institution of
any proceedings for that purpose, or of any notification of the
suspension of qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceedings for that purpose,
and will also advise you and the Selling Stockholder promptly of any
request of the Commission for amendment or supplement of the
Registration Statement, of any preliminary prospectus or of the
Prospectus, or for additional information.
(b) The Company will give you and the Selling Stockholder
notice of its intention to file or prepare any amendment to the
Registration Statement (including any post-effective amendment) or any
Rule 462(b) Registration Statement or any amendment or supplement to the
Prospectus (including any revised prospectus which the Company proposes
for use by the Underwriters in connection with
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the offering of the Shares which differs from the prospectus on file at
the Commission at the time the Registration Statement became or becomes
effective, whether or not such revised prospectus is required to be
filed pursuant to Rule 424(b) and any term sheet as contemplated by Rule
434) and will furnish you and the Selling Stockholder with copies of any
such amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file any such
amendment or supplement or use any such prospectus to which you or
counsel for the Underwriters shall reasonably object.
(c) If the Company elects to rely on Rule 434 of the 1933 Act,
the Company will prepare a term sheet that complies with the
requirements of Rule 434. If the Company elects not to rely on Rule 434,
the Company will provide the Underwriters with copies of the form of
prospectus, in such numbers as the Underwriters may reasonably request,
and file with the Commission such prospectus in accordance with Rule
424(b) of the 1933 Act by the close of business in New York City on the
second business day immediately succeeding the date of the Pricing
Agreement. If the Company elects to rely on Rule 434, the Company will
provide the Underwriters with copies of the form of Rule 434 Prospectus,
in such numbers as the Underwriters may reasonably request, by the close
of business in New York on the business day immediately succeeding the
date of the Pricing Agreement.
(d) If at any time when a prospectus relating to the Shares is
required to be delivered under the 1933 Act any event occurs as a result
of which the Prospectus, including any amendments or supplements, would
include an untrue statement of a material fact, or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend
the Prospectus, including any amendments or supplements thereto and
including any revised prospectus which the Company proposes for use by
the Underwriters in connection with the offering of the Shares which
differs from the prospectus on file with the Commission at the time of
effectiveness of the Registration Statement, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) to comply
with the 1933 Act, the Company promptly will advise you thereof and will
promptly prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance; and, in case any Underwriter is required to
deliver a prospectus nine months or more after the effective date of the
Registration Statement, the Company upon request, but at the expense of
such Underwriter, will prepare promptly such prospectus or prospectuses
as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the 1933 Act.
(e) Neither the Company nor any of its subsidiaries will,
prior to the earlier of the Second Closing Date or termination or
expiration of the related option, incur any liability or obligation,
direct or contingent, or enter into any material transaction, other than
in the ordinary course of business, except as contemplated by the
Prospectus.
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(f) Neither the Company nor any of its subsidiaries will
acquire any capital stock of the Company prior to the earlier of the
Second Closing Date or termination or expiration of the related option
nor will the Company declare or pay any dividend or make any other
distribution upon the Common Stock payable to stockholders of record on
a date after the date hereof and prior to the earlier of the Second
Closing Date or termination or expiration of the related option, except
in either case as contemplated by the Prospectus.
(g) Not later than March 31, 2004 the Company will make
generally available to its security holders an earnings statement (which
need not be audited) covering a period of at least 12 months beginning
after the effective date of the Registration Statement, which will
satisfy the provisions of the last paragraph of Section 11(a) of the
1933 Act.
(h) During such period as a prospectus is required by law to
be delivered in connection with offers and sales of the Shares by an
Underwriter or dealer, the Company will furnish to you at its expense,
subject to the provisions of subsection (d) hereof, copies of the
Registration Statement, the Prospectus, each preliminary prospectus and
all amendments and supplements to any such documents in each case as
soon as available and in such quantities as you may reasonably request,
for the purposes contemplated by the 1933 Act.
(i) The Company will cooperate with the Underwriters in
qualifying or registering the Shares for sale under the blue sky laws of
such jurisdictions as you designate, and will continue such
qualifications in effect so long as reasonably required for the
distribution of the Shares. The Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any such jurisdiction where it is not currently qualified or
where it would be subject to taxation as a foreign corporation.
(j) During the period of five years hereafter, the Company
will furnish you and each of the other Underwriters with a copy (i) as
soon as practicable after the filing thereof, of each report filed by
the Company with the Commission, any securities exchange or the NASD;
and (ii) as soon as available, of each report of the Company mailed to
stockholders.
(k) The Company will use the net proceeds received by it from
the sale of the Shares being sold by it in the manner specified in the
Prospectus.
(l) If, at the time of effectiveness of the Registration
Statement, any information shall have been omitted therefrom in reliance
upon Rule 430A and/or Rule 434, then immediately following the execution
of the Pricing Agreement, the Company will prepare, and file or transmit
for filing with the Commission in accordance with such Rule 430A, Rule
424(b) and/or Rule 434, copies of an amended Prospectus, or, if required
by such Rule 430A and/or Rule 434, a post-effective amendment to the
Registration Statement (including an amended Prospectus), containing all
information so
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omitted. If required, the Company will prepare and file, or transmit for
filing, a Rule 462(b) Registration Statement not later than the date of
the execution of the Pricing Agreement. If a Rule 462(b) Registration
Statement is filed, the Company shall make payment of, or arrange for
payment of, the additional registration fee owing to the Commission
required by Rule 111.
(m) The Company will comply with all registration, filing and
reporting requirements of the Exchange Act and the Nasdaq National
Market and will file with the Commission in a timely manner all reports
on Form SR required by Rule 463 and will furnish you copies of any such
reports as soon as practicable after the filing thereof.
(n) The Company agrees not to, directly or indirectly, (i)
offer, sell (including "short" selling), assign, transfer, encumber,
pledge, contract to sell, grant an option to purchase, establish an open
"put equivalent position" within the meaning of Rule 16a-1(h) under the
Exchange Act, or otherwise dispose of any shares of Common Stock or
securities convertible or exchangeable into, or exercisable for, Common
Stock held of record or beneficially owned (within the meaning of Rule
13d-3 under the Exchange Act); or (ii) enter any swap or other
arrangement that transfers all or a portion of the economic consequences
associated with the ownership of any Common Stock (except, in each case,
Common Stock issued pursuant to currently outstanding options, warrants
or convertible securities and except for options to be granted under the
2002 Stock Option Plan in the ordinary course or as disclosed in the
Prospectus) for a period of 180 days after this Agreement becomes
effective without the prior written consent of the Representatives. The
Company has obtained similar agreements from each of its officers and
directors and any holder of at least 1% of its outstanding equity.
SECTION 7. Payment of Expenses. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective as to
all of its provisions or is terminated, the Company agrees to pay (i) all costs,
fees and expenses (other than legal fees and disbursements of counsel for the
Underwriters and the expenses incurred by the Underwriters) incurred in
connection with the performance of the Company's obligations hereunder,
including without limiting the generality of the foregoing, all fees and
expenses of legal counsel for the Company and of the Company's independent
accountants, all costs and expenses incurred in connection with the preparation,
printing, filing and distribution of the Registration Statement, each
preliminary prospectus and the Prospectus (including all exhibits and financial
statements) and all amendments and supplements provided for herein, this
Agreement, the Pricing Agreement and the Blue Sky Memorandum, (ii) all costs,
fees and expenses (including legal fees, not to exceed $15,000, and
disbursements of counsel for the Underwriters) incurred by the Underwriters in
connection with qualifying or registering all or any part of the Shares for
offer and sale under blue sky laws, including the preparation of a blue sky
memorandum relating to the Shares and clearance of such offering with the NASD;
and (iii) all fees and expenses of the Company's transfer agent, printing of the
certificates for the Shares and all transfer taxes, if any, with respect to the
sale and delivery of the Shares to the several Underwriters.
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The provisions of this Section shall not affect any agreement which the
Company and the Selling Stockholder may make for the allocation or sharing of
such expenses and costs.
SECTION 8. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm Shares
on the First Closing Date and the Option Shares on the Second Closing Date shall
be subject to the accuracy of the representations and warranties on the part of
the Company and the Selling Stockholder herein set forth as of the date hereof
and as of the First Closing Date or the Second Closing Date, as the case may be,
to the accuracy of the statements of officers of the Company made pursuant to
the provisions hereof, to the performance by the Company and the Selling
Stockholder of their respective obligations hereunder, and to the following
additional conditions:
(a) The Registration Statement shall have become effective
either prior to the execution of this Agreement or not later than 1:00
P.M., Chicago Time, on the first full business day after the date of
this Agreement, or such later time as shall have been consented to by
you but in no event later than 1:00 P.M., Chicago Time, on the third
full business day following the date hereof; and prior to the First
Closing Date or the Second Closing Date, as the case may be, no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or shall be pending or, to the knowledge of the Company, the
Selling Stockholder or you, shall be contemplated by the Commission. If
the Company has elected to rely upon Rule 430A and/or Rule 434, the
information concerning the initial public offering price of the Shares
and price-related information shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) within the prescribed
period and the Company will provide evidence satisfactory to the
Representatives of such timely filing (or a post-effective amendment
providing such information shall have been filed and declared effective
in accordance with the requirements of Rules 430A and 424(b)). If a Rule
462(b) Registration Statement is required, such Registration Statement
shall have been transmitted to the Commission for filing and become
effective within the prescribed time period and, prior to the First
Closing Date, the Company shall have provided evidence of such filing
and effectiveness in accordance with Rule 462(b).
(b) The Shares shall have been qualified for sale under the
blue sky laws of such states as shall have been specified by the
Representatives.
(c) The legality and sufficiency of the authorization,
issuance and sale or transfer and sale of the Shares hereunder, the
validity and form of the certificates representing the Shares, the
execution and delivery of this Agreement and the Pricing Agreement, and
all corporate proceedings and other legal matters incident thereto, and
the form of the Registration Statement and the Prospectus (except
financial statements) shall have been approved by counsel for the
Underwriters exercising reasonable judgment.
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(d) You shall not have advised the Company that the
Registration Statement or the Prospectus or any amendment or supplement
thereto, contains an untrue statement of fact, which, in the opinion of
counsel for the Underwriters, is material or omits to state a fact
which, in the opinion of such counsel, is material and is required to be
stated therein or necessary to make the statements therein not
misleading.
(e) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any change, or any development
involving a prospective change, in or affecting particularly the
business or properties of the Company or its subsidiaries not disclosed
in the Registration Statement, whether or not arising in the ordinary
course of business, which, in the judgment of the Representatives, makes
it impractical or inadvisable to proceed with the public offering or
purchase of the Shares as contemplated hereby.
(f) There shall have been furnished to you, as Representatives
of the Underwriters, on the First Closing Date or the Second Closing
Date, as the case may be, except as otherwise expressly provided below:
(i) Opinions of Xxxxxxx Berlin Shereff Xxxxxxxx, LLP,
special counsel for the Company and for the Selling Stockholder,
and the General Counsel of the Company, in each case addressed to
the Underwriters and dated the First Closing Date or the Second
Closing Date, as the case may be, to the collective effect that:
(1) 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 its properties and conduct its
business as described in the Prospectus; and the Company
has been duly qualified to do business as a foreign
corporation under the corporation law of, and is in good
standing as such in, every jurisdiction where the
ownership or leasing of property, or the conduct of its
business requires such qualification except where the
failure so to qualify would not have a material adverse
effect upon the condition (financial or otherwise) or
results of operations of the Company and its subsidiaries
taken as a whole;
(2) an opinion to the same general effect as
clause (1) of this subparagraph (i) in respect of each
subsidiary of the Company named in Schedule C hereto (each
a "Subsidiary");
(3) based solely on a review of the minute
books, operating agreements and equity records of each
Subsidiary, all of the issued and outstanding limited
liability company interests of each Subsidiary has been
duly authorized, validly issued and is fully paid and
nonassessable, and the Company owns directly or
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indirectly 100 percent of the outstanding limited
liability company interests of each Subsidiary, and to the
best knowledge of such counsel, such interests are owned
free and clear of any claims, liens, encumbrances or
security interests;
(4) the authorized capital stock of the
Company, of which there is outstanding the amount set
forth in the Registration Statement and Prospectus (except
for subsequent issuances, if any, pursuant to stock
options or other rights referred to in the Prospectus),
conforms as to legal matters in all material respects to
the description thereof in the Registration Statement and
Prospectus;
(5) the issued and outstanding capital stock
of the Company has been duly authorized and validly issued
and, based on the Equity Exchange Agreement, is fully paid
and nonassessable;
(6) the certificates for the Shares to be
delivered hereunder are in due and proper form, and when
duly countersigned by the Company's transfer agent and
delivered to you or upon your order against payment of the
agreed consideration therefor in accordance with the
provisions of this Agreement and the Pricing Agreement,
the Shares represented thereby will be duly authorized and
validly issued, fully paid and nonassessable;
(7) to the best knowledge of such counsel, the
Registration Statement (including the information deemed
to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b) and/or Rule 434, if
applicable), the Prospectus and each amendment or
supplement thereto (except for the financial statements
and other statistical or financial data included therein
as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements
of the 1933 Act, and the Registration Statement has become
effective under the 1933 Act; no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the 1933
Act, the Registration Statement (including the information
deemed to be part of the Registration Statement at the
time of effectiveness pursuant to Rule 430A(b) and/or Rule
434, if applicable) and the Prospectus, and the
Registration Statement or the Prospectus as amended or
supplemented (except as aforesaid), as of their respective
effective or issue dates, did not contain any untrue
statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading in light of
the circumstances under which they were made; the
statements in the Registration Statement and the
Prospectus summarizing statutes, rules and regulations are
accurate and fairly and correctly present the information
required to
-16-
be presented by the 1933 Act or the rules and regulations
thereunder, in all material respects and such counsel does
not know of any statutes, rules and regulations required
to be described or referred to in the Registration
Statement or the Prospectus that are not described or
referred to therein as required; and such counsel does not
know of any legal or governmental proceedings pending or
threatened required to be described in the Prospectus
which are not described as required, nor of any contracts
or documents of a character required to be described in
the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not
described or filed, as required;
(8) the statements under the captions
"Reorganization", "Management - 2002 Stock Option Plan,"
"Certain Relationships and Related Transactions,"
"Description of Capital Stock" and "Shares Eligible for
Future Sale" in the Prospectus, insofar as such statements
constitute a summary of documents referred to therein or
matters of law, are accurate summaries and fairly and
correctly present, in all material respects, the
information called for with respect to such documents and
matters;
The making and performance of the Equity
Exchange Agreement by and among PRA LLC and the Company
was duly authorized by all necessary limited liability
company action and, after giving effect to all consents or
waivers obtained in a timely manner, did not violate any
provision of PRA LLC's certificate of formation or
operating agreement, did not result in the breach, or was
not in contravention, of any provision of any agreement
set forth, or known to such counsel and required to be set
forth, as an exhibit to the Registration Statement, or any
order, rule or regulation applicable to PRA LLC and known
to such counsel of any court or regulatory body,
administrative agency or other governmental body having
jurisdiction over PRA LLC or any of its properties, or any
order of any court or governmental agency or authority
entered in any proceeding to which PRA LLC was or is a
party or by which it was or is bound, except for such
violations, breaches or contraventions which would not
have a Material Adverse Effect. No consent, approval,
authorization or other order of any court, regulatory
body, administrative agency or other governmental body was
required for the execution and delivery of the Equity
Exchange Agreement or the consummation of the transactions
contemplated therein, other than consents, approvals or
authorizations obtained prior to the consummation thereof.
(9) this Agreement and the Pricing Agreement
and the performance of the Company's obligations hereunder
have been duly authorized by all necessary corporate
action and this Agreement and the Pricing Agreement have
been duly
-17-
executed and delivered by and on behalf of the Company, and are legal,
valid and binding agreements of the Company, except as enforceability of
the same may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights and by the
exercise of judicial discretion in accordance with general principles
applicable to equitable and similar remedies and except as to those
provisions relating to indemnities for liabilities arising under the
1933 Act as to which no opinion need be expressed; and no approval,
authorization or consent of any public board, agency, or instrumentality
of the United States or of any state or other jurisdiction is necessary
in connection with the issue or sale of the Shares by the Company
pursuant to this Agreement (other than under the 1933 Act, applicable
blue sky laws and the rules of the NASD, as to which such counsel need
express no opinion) or the consummation by the Company of any other
transactions contemplated hereby (such opinion may assume that Illinois
Law is the same as New York Law for this purpose);
(10) the execution and performance of this Agreement will not
contravene any of the provisions of, or result in a default under, any
agreement set forth, or known to such counsel and required to be set
forth, as an exhibit to the Registration Statement; or violate any of
the provisions of the organizational documents of the Company or any of
its subsidiaries or, so far as is known to such counsel, violate any
statute, order, rule or regulation of any regulatory or governmental
body having jurisdiction over the Company or any of its subsidiaries,
except such contraventions or defaults which would not have a Material
Adverse Effect;
(11) to such counsel's knowledge, based solely on a review of
the minute books and equity records of each Subsidiary, all offers and
sales of the Company's capital stock or membership interests of any of
the Company's subsidiaries since September 30, 1999 were at all relevant
times exempt from the registration requirements of the 1933 Act and were
duly registered or the subject of an available exemption from the
registration requirements of the applicable state securities or blue sky
laws;
(12) to such counsel's knowledge, this Agreement and the
Pricing Agreement have been duly authorized, executed and delivered by
or on behalf of the Selling Stockholder, and the performance of this
Agreement and the Pricing Agreement and the consummation of the
transactions herein contemplated by the Selling Stockholder will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute known to such counsel and
applicable to transactions of the type contemplated by this Agreement or
agreement set forth, or known to such counsel and required to be set
forth, as an exhibit to the Registration
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Statement; and no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement and the Pricing Agreement in
connection with the sale of Shares to be sold by the Selling Stockholder
hereunder (other than under the 1933 Act, applicable blue sky laws and
the rules of the NASD, as to which such counsel need express no opinion)
(such opinion may assume that Illinois Law is the same as New York Law
for this purpose);
(13) to such counsel's knowledge, the Selling Stockholder has
full right, power and authority to enter into this Agreement and the
Pricing Agreement and to sell, transfer and deliver the Shares to be
sold on the First Closing Date or the Second Closing Date, as the case
may be, by the Selling Stockholder hereunder and good and marketable
title to such Shares so sold, free and clear of all voting trust
arrangements, liens, encumbrances, equities, claims and community
property rights whatsoever, has been transferred to the Underwriters
(who counsel may assume to be bona fide purchasers) who have purchased
such Shares hereunder; and
(14) this Agreement and the Pricing Agreement are legal,
valid and binding agreements of the Selling Stockholder except as
enforceability of the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights and by the exercise of judicial discretion in accordance with
general principles applicable to equitable and similar remedies and
except with respect to those provisions relating to indemnities for
liabilities arising under the 1933 Act, as to which no opinion need be
expressed.
(15) the Company is not an "investment company" or a person
"controlled by" an "investment company" within the meaning of the
Investment Company Act.
In rendering such opinion, such counsel may rely and
state that they are relying upon the certificate of ___________, the transfer
agent for the Common Stock, as to the number of shares of Common Stock at any
time or times outstanding, and that insofar as their opinion under clause (7)
above relates to the accuracy and completeness of the Prospectus and
Registration Statement, it is based upon a general review with the Company's
representatives and independent accountants of the information contained
therein, without independent verification by such counsel of the accuracy or
completeness of such information. Such counsel may also rely upon the opinions
of other competent counsel and, as to factual matters, on certificates of the
Selling Stockholder and of officers of the Company and of state officials;
including, but not limited to certificates relating to the opinion of such
counsel under clause (1) above relating to the due qualification and good
standing of the Company, in which case their opinion is to state that they are
so doing and copies of said opinions or certificates are to be attached to the
opinion unless said opinions or
-19-
certificates (or, in the case of certificates, the information therein) have
been furnished to the Representatives in other form.
Such counsel's opinion shall be limited to matters governed by federal
securities laws and by the General Corporation Law of the State of Delaware and
any opinion rendered by such counsel with respect to the enforcement of this
Agreement or the Pricing Agreement shall assume that the laws of the State of
Illinois are the same as the laws of the State of New York. For purposes of such
opinions, no proceedings shall be deemed to be pending, no order or stop order
shall be deemed to be issued, and no action shall be deemed to be instituted
unless, in each case, a director or executive officer of the Company shall have
received a copy of such proceedings, order, stop order or action. For purposes
of such opinion, no proceedings shall be deemed to be threatened unless the
potential litigant or government authority has manifested in writing to the
directors or management of the Company, or to counsel thereof, a present
intention to initiate such litigation or proceedings. In addition, such opinion
may be limited to present statutes, regulations and judicial interpretations and
to facts as they presently exist as of the date of such opinion, In rendering
such opinion, such counsel need assume no obligation to revise or supplement it
should the present laws be changed by legislative or regulatory action, judicial
action or otherwise. Such counsel may make certain customary assumptions
relating to parties other than the Company. In addition, in lieu of an opinion
with respect to the fourth clause of paragraph (7) above, such counsel may
confirm in writing that in connection with the preparation of the Registration
Statement, they have participated in conferences with officers, employees and
other representatives of the Company, independent accountants of the Company,
the Underwriters and counsel for the Underwriters, at which the contents of the
Registration Statement and Prospectus were discussed and, although such counsel
is not passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus, and has not made any independent check or verification
thereof, on the basis of the foregoing (relying as to materiality to a large
extent upon the statements of officers, employees and other representatives of
the Company), such counsel have no reason to believe that either the
Registration Statement (including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A(b)
and/or Rule 434, if applicable) or the Prospectus, or the Registration Statement
or the Prospectus as amended or supplemented (except as aforesaid), as of their
respective effective dates, contained any 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, in light of the circumstances under which they were
made, not misleading or that the Prospectus as amended or supplemented, if
applicable, as of the First Closing Date or the Second Closing Date, as the case
may be, contained any untrue statement of a material fact or omitted to state
any material fact necessary to make the statements therein not misleading in
light of the circumstances under which they were made (it being understood that,
in each case, such counsel need express no view with respect to the financial
statements and other financial and statistical data and
-20-
schedules included in the Registration Statement or Prospectus or the
information from the Underwriters in the Prospectus as described in Section).
In addition, such counsel shall confirm in writing that, although such
counsel need not pass upon, and need not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus and need not make any independent
check or verification thereof, during the course of such participation (relying
as to materiality to a large extent upon the Selling Stockholder Questionnaire
completed by the Selling Stockholder, the statements of officers and other
representatives of the Company), no facts have come to such counsel's attention
that causes such counsel to believe either the Registration Statement (including
the information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b) and/or Rule 434, if applicable) at the
time it became effective, insofar as it relates to the Selling Stockholder,
contained any untrue statement of material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading or that
the Prospectus, as amended or supplemented, if applicable, as of its date and as
of the First Closing Date or the Second Closing Date, as the case may be,
insofar as it relates to the Selling Stockholder, contained any untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
(ii) Such opinion or opinions of Sidley Xxxxxx Xxxxx & Xxxx, counsel
for the Underwriters ("SABW"), dated the First Closing Date or the Second
Closing Date, as the case may be, with respect to the incorporation of the
Company, the validity of the Shares to be sold by the Company, the Registration
Statement and the Prospectus and other related matters as you may reasonably
require, and the Company shall have furnished to such counsel such documents and
shall have exhibited to them such papers and records as they request for the
purpose of enabling them to pass upon such matters.
(iii) A certificate of the chief executive officer and the principal
financial officer of the Company, dated the First Closing Date or the Second
Closing Date, as the case may be, to the effect that:
(1) the representations and warranties of the Company set
forth in Section 2 of this Agreement are true and correct as of the date
of this Agreement and as of the First Closing Date or the Second Closing
Date, as the case may be, and the
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Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to such
Closing Date; and
(2) the Commission has not issued an order preventing or
suspending the use of the Prospectus or any preliminary prospectus filed
as a part of the Registration Statement or any amendment thereto; no
stop order suspending the effectiveness of the Registration Statement
has been issued; and to the best knowledge of the respective signers, no
proceedings for that purpose have been instituted or are pending or
contemplated under the 1933 Act.
The delivery of the certificate provided for in this
subparagraph shall be and constitute a representation and warranty of the
Company as to the facts required in the immediately foregoing clauses (1) and
(2) of this subparagraph to be set forth in said certificate.
(iv) A certificate of the Selling Stockholder dated the First Closing
Date or the Second Closing Date, as the case may be, to the effect that the
representations and warranties of the Selling Stockholder set forth in Section 3
of this Agreement are true and correct as of such date and the Selling
Stockholder has complied with all the agreements and satisfied all the
conditions on the part of the Selling Stockholder to be performed or satisfied
at or prior to such date.
(v) At the time the Pricing Agreement is executed and also on the
First Closing Date or the Second Closing Date, as the case may be, there shall
be delivered to you a letter addressed to you, as Representatives of the
Underwriters, from PricewaterhouseCoopers LLP. independent accountants, the
first one to be dated the date of the Pricing Agreement, the second one to be
dated the First Closing Date and the third one (in the event of a second
closing) to be dated the Second Closing Date, in such form reasonably
satisfactory to SABW, counsel to the Underwriters. There shall not have been any
change or decrease specified in the letters referred to in this subparagraph
which makes it impractical or inadvisable in the judgment of the Representatives
to proceed with the public offering or purchase of the Shares as contemplated
hereby.
[(vi) A certificate of the chief executive officer and the principal
financial officer of the Company, dated the First Closing Date or the Second
Closing Date, as the case may be, verifying the truth and accuracy of the
specific statistical or financial figure included in the Prospectus which has
not been otherwise verified by the letters referred to in clause (v) above, such
verification to include the provision of documentary evidence supporting any
such statistical or financial figure.]
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(vii) Such further certificates and documents as you may reasonably
request.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to you and
to Sidley Xxxxxx Xxxxx & Xxxx, counsel for the Underwriters, which approval
shall not be unreasonably withheld. The Company shall furnish you with such
manually signed or conformed copies of such opinions, certificates, letters and
documents as you request.
If any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at the First Closing Date is not so satisfied, this
Agreement at your election will terminate upon notification to the Company and
the Selling Stockholder without liability on the part of any Underwriter or the
Company or the Selling Stockholder, except for the expenses to be paid or
reimbursed by the Company pursuant to Sections 7 and 9 hereof and except to the
extent provided in Section 11 hereof.
SECTION 9. Reimbursement of Underwriters' Expenses. If the sale to the
Underwriters of the Shares on the First Closing Date is not consummated because
any condition of the Underwriters' obligations hereunder is not satisfied or
because of any refusal, inability or failure on the part of the Company or the
Selling Stockholder to perform any agreement herein or to comply with any
provision hereof, unless such failure to satisfy such condition or to comply
with any provision hereof is due to the default or omission of any Underwriter,
the Company agrees to reimburse you and the other Underwriters upon demand for
all out-of-pocket expenses (including reasonable fees and disbursements of
counsel not to exceed $15,000) that shall have been reasonably incurred by you
and them in connection with the proposed purchase and the sale of the Shares.
Any such termination shall be without liability of any party to any other party
except that the provisions of this Section, Section 7 and Section 11 shall at
all times be effective and shall apply.
SECTION 10. Effectiveness of Registration Statement. You, the Company
and the Selling Stockholder will use your, its and their reasonable best efforts
to cause the Registration Statement to become effective, if it has not yet
become effective, and to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if such stop order be issued,
to obtain as soon as possible the lifting thereof.
SECTION 11. Indemnification. (a) The Company and the Selling
Stockholder, severally and not jointly, agree to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of the 1933 Act or the Exchange Act against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the 1933 Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise
(including in settlement of any litigation if such settlement is effected with
the written consent of the Company and/or the Selling Stockholder), insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, including the
information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A and/or Rule 434, if applicable, any
preliminary
-23-
prospectus, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and will reimburse each Underwriter and each such
controlling person 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, liability or action; provided, however,
that neither the Company nor the Selling Stockholder will be liable in any such
case to the extent that (i) 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 any amendment or supplement thereto in reliance
upon and in conformity with the information with respect to which the
Underwriters have made representations and warranties in Section 4 of this
Agreement; or (ii) if such statement or omission was contained or made in any
preliminary prospectus and corrected in the Prospectus and (1) any such loss,
claim, damage or liability suffered or incurred by any Underwriter (or any
person who controls any Underwriter) resulted from an action, claim or suit by
any person who purchased Shares which are the subject thereof from such
Underwriter in the offering and (2) such Underwriter failed to deliver or
provide a copy of the Prospectus to such person at or prior to the confirmation
of the sale of such Shares in any case where such delivery is required by the
1933 Act. In addition to their other obligations under this Section 11(a), the
Company and the Selling Stockholder agree that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any alleged statement
or omission, described in this Section 11(a), they will reimburse the
Underwriters on a monthly basis for all reasonable legal and other expenses
incurred in connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the Company's
and/or the Selling Stockholder's obligation to reimburse the Underwriters for
such expenses and the possibility that such payments might later be held to have
been improper by a court of competent jurisdiction. This indemnity agreement
will be in addition to any liability which the Company and the Selling
Stockholder may otherwise have.
(b) Each Underwriter will severally indemnify and hold harmless the
Company, each of its directors, each of its officers, and the Selling
Stockholder and each person, if any, who controls the Company within the meaning
of the 1933 Act or the Exchange Act, against any losses, claims, damages or
liabilities to which the Company, or any such director, officer, Selling
Stockholder or controlling person may become subject under the 1933 Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise (including in settlement of any litigation, if such settlement
is effected with the written consent of such Underwriter), insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue 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 arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any preliminary prospectus, the Prospectus, or any
-24-
amendment or supplement thereto in reliance upon and in conformity with the
information with respect to which the Underwriters have made representations and
warranties in Section 4 of this Agreement; and will reimburse any legal or other
expenses reasonably incurred by the Company, or any such director, officer, the
Selling Stockholder or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action. In addition to
their other obligations under this Section 11(b), the Underwriters agree that,
as an interim measure during the pendency of any claim, action, investigation,
inquiry or other proceeding arising out of or based upon any statement or
omission, or any alleged statement or omission, described in this Section 11(b),
they will reimburse the Company and the Selling Stockholder on a monthly basis
for all reasonable legal and other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the Underwriters' obligation to reimburse
the Company and the Selling Stockholder for such expenses and the possibility
that such payments might later be held to have been improper by a court of
competent jurisdiction. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 11 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 11, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party except to the
extent that the indemnifying party was prejudiced by such failure to notify. In
case any such action is brought against any indemnified party, and it notifies
an indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate in, and, to the extent that it may wish, jointly with
all other indemnifying parties similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, or the indemnified and indemnifying parties may have
conflicting interests which would make it inappropriate for the same counsel to
represent both of them, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defense and otherwise to
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 11 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defense in accordance with the proviso
to the immediately preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives (or the Selling Stockholder if
none of the indemnified parties is an Underwriter) in the case of paragraph (a)
representing all indemnified parties not having different or additional defenses
or potential conflicting interest among themselves who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
-25-
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability arising out
of such proceeding.
(d) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party under paragraphs (a) or (b) hereof in
respect of any losses, claims, damages or liabilities referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, the Selling Stockholder and the Underwriters from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, the Selling Stockholder and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
respective relative benefits received by the Company, the Selling Stockholder
and the Underwriters shall be deemed to be in the same proportion in the case of
the Company and the Selling Stockholder, as the total price paid to the Company
and the Selling Stockholder for the Shares by the Underwriters (net of
underwriting discount but before deducting expenses), and in the case of the
Underwriters as the underwriting discount received by them bears to the total of
such amounts paid to the Company and the Selling Stockholder and received by the
Underwriters as underwriting discount in each case as contemplated by the
Prospectus. The relative fault of the Company and the Selling Stockholder and
the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the Company
or by the Selling Stockholder or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages and liabilities referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company, the Selling Stockholder and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 11(d)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this Section
11(d), no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
-26-
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 11 are several in proportion
to their respective underwriting commitments and not joint.
(e) The provisions of this Section shall survive any termination of
this Agreement.
Section 12. Default of Underwriters. It shall be a condition to the
agreement and obligation of the Company and the Selling Stockholder to sell and
deliver the Shares hereunder, and of each Underwriter to purchase the Shares
hereunder, that, except as hereinafter in this paragraph provided, each of the
Underwriters shall purchase and pay for all Shares agreed to be purchased by
such Underwriter hereunder upon tender to the Representatives of all such Shares
in accordance with the terms hereof. If any Underwriter or Underwriters default
in their obligations to purchase Shares hereunder on the First Closing Date and
the aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10 percent of the total number of
Shares which the Underwriters are obligated to purchase on the First Closing
Date, the Representatives may make arrangements satisfactory to the Company and
the Selling Stockholder for the purchase of such Shares by other persons,
including any of the Underwriters, but if no such arrangements are made by such
date the nondefaulting Underwriters shall be obligated severally, in proportion
to their respective commitments hereunder, to purchase the Shares which such
defaulting Underwriters agreed but failed to purchase on such date. If any
Underwriter or Underwriters so default and the aggregate number of Shares with
respect to which such default or defaults occur is more than the above
percentage and arrangements satisfactory to the Representatives and the Company
and the Selling Stockholder for the purchase of such Shares by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any nondefaulting Underwriter or the Company or
the Selling Stockholder, except for the expenses to be paid by the Company
pursuant to Section 7 hereof and except to the extent provided in Section 11
hereof.
In the event that Shares to which a default relates are to be purchased
by the nondefaulting Underwriters or by another party or parties, the
Representatives or the Company shall have the right to postpone the First
Closing Date for not more than seven business days in order that the necessary
changes in the Registration Statement, Prospectus and any other documents, as
well as any other arrangements, may be effected. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
SECTION 13. Effective Date. This Agreement shall become effective
immediately as to Sections 7, 9, 11 and 14 and as to all other provisions at
10:00 A.M., Chicago Time, on the day following the date upon which the Pricing
Agreement is executed and delivered, unless such a day is a Saturday, Sunday or
holiday (and in that event this Agreement shall become effective at such hour on
the business day next succeeding such Saturday, Sunday or holiday); but this
Agreement shall nevertheless become effective at such earlier time after the
Pricing Agreement is executed and delivered as you may determine on and by
notice to the Company
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and the Selling Stockholder or by release of any Shares for sale to the public.
For the purposes of this Section, the Shares shall be deemed to have been so
released upon the release for publication of any newspaper advertisement
relating to the Shares or upon the release by you of telegrams (i) advising
Underwriters that the Shares are released for public offering, or (ii) offering
the Shares for sale to securities dealers, whichever may occur first.
SECTION 14. Termination. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by
notice to you and the Selling Stockholder or by you by notice to the
Company and the Selling Stockholder at any time prior to the time this
Agreement shall become effective as to all its provisions, and any such
termination shall be without liability on the part of the Company or the
Selling Stockholder to any Underwriter (except for the expenses to be
paid or reimbursed pursuant to Section 7 hereof and except to the extent
provided in Section 11 hereof) or of any Underwriter to the Company or
the Selling Stockholder.
(b) This Agreement may also be terminated by you prior to
the First Closing Date, and the option referred to in Section 5, if
exercised, may be cancelled at any time prior to the Second Closing
Date, if (i) trading in securities on the New York Stock Exchange or the
Nasdaq National Market shall have been suspended or minimum prices shall
have been established on such exchange or market, or (ii) a banking
moratorium shall have been declared by Illinois, New York, or United
States authorities, or (iii) there shall have been any adverse change in
financial markets or in political, economic or financial conditions
which, in the opinion of the Representatives, either renders it
impracticable or inadvisable to proceed with the offering and sale of
the Shares on the terms set forth in the Prospectus or materially and
adversely affects the market for the Shares, or (iv) there shall have
been an outbreak of major armed hostilities between the United States
and any foreign power or terrorist organization which in the opinion of
the Representatives makes it impractical or inadvisable to offer or sell
the Shares. Any termination pursuant to this paragraph (b) shall be
without liability on the part of any Underwriter to the Company (except
to the extent provided in Section 11 hereof) or the Selling Stockholder
or on the part of the Company to any Underwriter or the Selling
Stockholder (except for expenses to be paid or reimbursed pursuant to
Section 7 hereof and except to the extent provided in Section 11
hereof).
SECTION 15. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers, of the Selling Stockholder and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of its or their partners,
principals, members, officers or directors or any controlling person, or the
Selling Stockholder as the case may be, and will survive delivery of and payment
for the Shares sold hereunder.
-28-
SECTION 16. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters will be mailed, delivered or telegraphed and
confirmed to you c/o Xxxxxxx Xxxxx & Company, L.L.C., 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, with a copy to Xxx X. Xxxxxx c/x Xxxxxx Xxxxxx Xxxxx &
Xxxx, Bank Xxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000; if sent to the Company will be
mailed, delivered or telegraphed and confirmed to the Company at its corporate
headquarters with a copy to Xxxxxxx X. Xxxxxxxx, Esq. c/x Xxxxxxx Berlin Shereff
Xxxxxxxx, LLP, 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; if
sent to the Selling Stockholder will be mailed, delivered or telegraphed and
confirmed to the Selling Stockholder at such address as they have previously
furnished to the Company and the Representatives, with a copy to Xxxxxxx X.
Xxxxxxxx, Esq. c/x Xxxxxxx Berlin Shereff Xxxxxxxx, LLP, 000 Xxxxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 17. Successors. This Agreement and the Pricing Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors, personal representatives and assigns, and to the benefit
of the officers and directors and controlling persons referred to in Section 11,
and no other person will have any right or obligation hereunder. The term
"successors" shall not include any purchaser of the Shares as such from any of
the Underwriters merely by reason of such purchase.
SECTION 18. Representation of Underwriters. You will act as
Representatives for the several Underwriters in connection with this financing,
and any action under or in respect of this Agreement taken by you will be
binding upon all the Underwriters.
SECTION 19. Partial Unenforceability. If any section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
SECTION 20. Applicable Law. This Agreement and the Pricing Agreement
shall be governed by and construed in accordance with the laws of the State of
Illinois.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Stockholder and the several Underwriters including you, all in accordance with
its terms.
Very truly yours,
PORTFOLIO RECOVERY ASSOCIATES, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxxxxxxxx
Chief Executive Officer
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PRA INVESTMENTS, L.L.C.
By:
------------------------------------
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXXX XXXXX & COMPANY, L.L.C.
U.S. BANCORP XXXXX XXXXXXX, INC.
Acting as Representatives of the several Underwriters named in Schedule A.
By Xxxxxxx Xxxxx & Company, L.L.C.
By
----------------------------------
Principal
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SCHEDULE A
Number of
Firm Shares
Underwriter to be Purchased
----------- ---------------
Xxxxxxx Xxxxx & Company, L.L.C.
U.S. Bancorp Xxxxx Xxxxxxx, Inc.
---------
TOTAL
=========
SCHEDULE B
Number of Number of
Firm Shares Option Shares
to be Sold to be Sold
---------- ----------
Company 3,470,000 ---
Selling Stockholder --- 520,500
--------- -------
TOTAL 3,470,000 520,500
========= =======
SCHEDULE C
Subsidiaries
EXHIBIT A
PORTFOLIO RECOVERY ASSOCIATES, INC.
3,470,000 Shares Common Stock(2)
PRICING AGREEMENT
_______, 2002
Xxxxxxx Xxxxx & Company, L.L.C.
U.S. BANCORP XXXXX XXXXXXX, INC.
As Representatives of the Several
Underwriters
c/o Xxxxxxx Xxxxx & Company, L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated _________________,
2002 (the "Underwriting Agreement") relating to the sale by the Company and the
Selling Stockholder and the purchase by the several Underwriters for whom
Xxxxxxx Xxxxx & Company, L.L.C. and U.S. Bancorp Xxxxx Xxxxxxx, Inc. are acting
as representatives (the "Representatives"), of the above Shares. All terms
herein shall have the definitions contained in the Underwriting Agreement except
as otherwise defined herein.
Pursuant to Section 5 of the Underwriting Agreement, the Company and the
Selling Stockholder agree with the Representatives as follows:
1. The initial public offering price per share for the Shares shall
be $__________.
2. The purchase price per share for the Shares to be paid by the
several Underwriters shall be $_____________, being an amount equal to the
initial public offering price set forth above less $____________ per share.
------------------------
(2) Plus an option to acquire up to 520,500 additional shares to cover
overallotments
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Stockholder and the several Underwriters, including you, all in accordance with
its terms.
Very truly yours,
PORTFOLIO RECOVERY ASSOCIATES, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxxxxxxxx
Chief Executive Officer
PRA INVESTMENTS, L.L.C.
By:
------------------------------------
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXXX XXXXX & COMPANY, L.L.C.
U.S. BANCORP XXXXX XXXXXXX, INC.
Acting as Representatives of the several Underwriters
By Xxxxxxx Xxxxx & Company, L.L.C.
By
-------------------------------------------------
Principal
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