EXHIBIT 1.1
[ ]
PACER INTERNATIONAL, INC.
Common Stock
FORM OF
UNDERWRITING AGREEMENT
----------------------
[ ], 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, XXXXXXX & CO. INC.
DEUTSCHE BANK SECURITIES INC.
X.X. XXXXXX SECURITIES INC.
UBS WARBURG LLC
BB&T CAPITAL MARKETS, a DIVISION of XXXXX & XXXXXXXXXXXX, INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Pacer International, Inc., a Tennessee corporation
("Company"), proposes to issue and sell [______] shares of its common stock
("Securities") to the several Underwriters named in Schedule B hereto
("Underwriters") and the stockholders listed in Schedule A hereto ("Selling
Stockholders") propose severally to sell an aggregate of [______] outstanding
shares of the Securities (such [______] shares of Securities being hereinafter
referred to as the "Firm Securities") to the Underwriters. The Selling
Stockholders propose to sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than [______] additional outstanding
shares of the Company's Securities, as set forth below (such [______] additional
shares being hereinafter referred to as the "Optional Securities"). The Firm
Securities and the Optional Securities are herein collectively called the
"Offered Securities". As part of the offering contemplated by this Agreement,
Credit Suisse First Boston Corporation ("CSFBC"), (the "Designated Underwriter")
has agreed to reserve out of the Firm Securities purchased by the Underwriters
under this Agreement, up to [______] shares, for sale to the Company's
directors, officers, employees and other parties associated with the Company
(collectively, "Participants"), as set forth in the Prospectus (as defined
herein) under the heading "Underwriting" (the "Directed Share Program"). The
Firm Securities to be sold by the Designated Underwriter pursuant to the
Directed Share Program (the "Directed Shares") will be sold by the Designated
Underwriter pursuant to this Agreement at the public offering price. Any
Directed Shares not subscribed for by the end of the business day on which this
Agreement is executed will be offered to the public by the Underwriters as set
forth in the Prospectus. The Company and the Selling Stockholders hereby agree
with the Underwriters as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-53700) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("Commission") and either (A) has been
declared effective under the Securities Act of 1933 ("Act") and is not
proposed to be amended or (B) is proposed to be amended by amendment or
post-effective amendment. If such registration statement (the "initial
registration statement") has been declared effective, either (A) an
additional registration statement (the "additional registration statement")
relating to the Offered Securities may have been filed with the Com-
mission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so
filed, has become effective upon filing pursuant to such Rule and the
Offered Securities all have been duly registered under the Act pursuant to
the initial registration statement and, if applicable, the additional
registration statement or (B) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration statement
has been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("Rule 462(c)") under the Act
or, in the case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "Effective Time" with respect to the initial
registration statement or, if filed prior to the execution and delivery of
this Agreement, the additional registration statement means (A) if the
Company has advised the Representatives that it does not propose to amend
such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto
(if any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the Commission. If
an additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "Effective Time" with respect
to such additional registration statement means the date and time as of
which such registration statement is filed and becomes effective pursuant
to Rule 462(b). "Effective Date" with respect to the initial registration
statement or the additional registration statement (if any) means the date
of the Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all information contained in the
additional registration statement (if any) and deemed to be a part of the
initial registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form on
which it is filed and including all information (if any) deemed to be a
part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is hereinafter
referred to as the "Initial Registration Statement". The additional
registration statement, as amended at its Effective Time, including the
contents of the initial registration statement incorporated by reference
therein and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration
Statement". The Initial Registration Statement and the Additional
Registration are hereinafter referred to collectively as the "Registration
Statements" and individually as a "Registration Statement". The form of
prospectus relating to the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)")
under the Act or (if no such filing is required) as included in a
Registration Statement, is hereinafter referred to as the "Prospectus". No
document has been or will be prepared or distributed in reliance on Rule
434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all material respects to the requirements of the Act
and the applicable rules and regulations of the Commission thereunder
("Rules and Regu-
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lations") and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, (B) on the Effective Date of
the Additional Registration Statement (if any), each Registration Statement
conformed or will conform, in all material respects to the requirements of
the Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or will
not omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (C) on the
date of this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the Effective
Date of the Additional Registration Statement in which the Prospectus is
included, each Registration Statement and the Prospectus will conform, in
all material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue statement of
a material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
and no Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(c) hereof.
(iii) The authorized capital stock of the Company conforms in all
material respects as to legal matters to the description thereof contained
in the Prospectus.
(iv) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the requisite corporate power and authority to own its
property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(v) Each subsidiary of the Company has been duly organized, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its organization, has the requisite corporate power and
authority to own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole; all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and, except as described in the Registration
Statement and the Prospectus, are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims,
except for liens granted to the lenders under the Company's credit
agreement, as described under "Description
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of Certain Indebtedness -- Senior Secured Credit Facility" in the
Prospectus (the "Credit Agreement").
(vi) This Agreement has been duly authorized, executed and delivered
by the Company.
(vii) The shares of capital stock of the Company outstanding prior to
the issuance of the Offered Securities have been duly authorized and are
validly issued, fully paid and non-assessable.
(viii) The Offered Securities have been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement, will
be validly issued, fully paid and non-assessable, and the issuance of such
Offered Securities will not be subject to any preemptive or similar rights.
(ix) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not contravene
any provision of (a) as of the date hereof, the Amended and Restated
Charter of the Company, as amended (the "Existing Charter") or Amended
By-Laws (the "Existing By-Laws") of the Company or, as of the Closing Date,
the Second Amended and Restated Charter of the Company or the Second
Amended and Restated By-Laws, (b) applicable law, (c) any agreement or
other instrument binding upon the Company or any of its subsidiaries that
is material to the Company and its subsidiaries, taken as a whole, or (d)
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary the noncompliance
with which, in the case of clauses (b), (c) and (d), would have a material
adverse effect on the Company and its subsidiaries, taken as a whole; and
no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement except (a) for such consents,
approvals, authorizations, orders or qualifications as would not adversely
affect the Underwriters and as would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole, (b) such as have been
obtained or made under the Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and (c) for such consents, approvals,
authorizations, orders or qualifications as may be required (i) by the
National Association of Securities Dealers, Inc. ("NASD"), (ii) under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters or (iii) under
the federal or provincial laws of Canada or under the laws of any other
foreign jurisdiction in which the Offered Securities may be offered or
sold.
(x) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(xi) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in any Registration Statement or
the Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in any
Registration Statement or the Prospectus or to be filed as exhibits to such
Registration Statement that are not described or filed as required.
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(xii) Except for the preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of Amendment
No. 1 thereto, each preliminary prospectus filed as part of any other
amendment to any Registration Statement, or filed pursuant to Rule 424
under the Act, complied when so filed in all material respects with
the Act and the applicable Rules and Regulations.
(xiii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be required
to register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(xiv) The Company and its subsidiaries (A) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (B) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respect businesses and (C) are in
compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, individually or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(xv) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, individually or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(xvi) Except as set forth in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities with
the Offered Securities registered pursuant to the Registration
Statements.
(xvii) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus and except
as disclosed in the Registration Statement and the Prospectus, (A) the
Company and its subsidiaries have not incurred any material liability
or obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (B) the Company
has not purchased any of its outstanding capital stock, nor declared,
paid or otherwise made any dividend or distribution of any kind on its
capital stock other than ordinary and customary dividends; and (C)
there has not been any material change in the capital stock,
short-term debt or long-term debt of the Company and its subsidiaries,
except in each case as described in the Prospectus.
(xviii) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them which is material to the
business of the Company and its subsidiaries, taken as a whole, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries; and any
5
real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as
described in the Prospectus.
(xix) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names currently employed by them in connection with the
businesses now operated by them, and neither the Company nor any of
its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the
foregoing which, individually or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(xx) No material labor dispute with the employees of the Company
or any of its subsidiaries exists, except as described in the
Prospectus, or, to the knowledge of the Company, is imminent; and the
Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could reasonably be expected to have
a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(xxi) The Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in
which they are engaged; neither the Company nor any of its
subsidiaries has been refused any insurance coverage sought or applied
for; and neither the Company nor any of its subsidiaries has any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole, except as
described in the Prospectus.
(xxii) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on
the Company and its subsidiaries, taken as a whole, except as
described in the Prospectus.
(xxiii) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance
with management's general or specific authorizations; (B) transactions
are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles
and to maintain asset accountability; (C) access to assets is
permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxiv) The statistical and market-related data included in each
Registration Statement and Prospectus are based on or derived from
independent sources which the Company believes to
6
be reliable in all material respects or represent the Company's good
faith estimates based on information it believes to be reliable.
(xxv) The audited and unaudited consolidated financial statements
and related notes of the Company and its consolidated subsidiaries
included in each Registration Statement and Prospectus present fairly,
in all material respects, the consolidated financial position, results
of operations and cash flows of the Company and its consolidated
subsidiaries at the dates and for the periods to which they relate and
have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis. PricewaterhouseCoopers LLP,
who has audited the consolidated financial statements as set forth in
their report included in each Registration Statement and Prospectus,
is an independent public accounting firm as required by the Act, the
Exchange Act and the rules and regulations promulgated thereunder.
(xxvi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(xxvii) The Securities have been approved for listing subject to
notice of issuance on The Nasdaq Stock Market's National Market.
(xxviii) Each Registration Statement, the Prospectus and any
preliminary prospectus comply, and any amendments or supplements
thereto will comply, with any applicable laws or regulations of
foreign jurisdictions in which the Prospectus or any preliminary
prospectus, as amended or supplemented, if applicable, are distributed
in connection with the Directed Share Program.
(xxix) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency, other than those
obtained, is required in connection with the offering of the Directed
Shares in any jurisdiction where the Directed Shares are being
offered.
(xxx) The Company has not offered, or caused the Underwriters to
offer, any Offered Securities to any person pursuant to the Directed
Share Program with the specific intent to unlawfully influence (A) a
customer or supplier of the Company to alter the customer's or
supplier's level or type of business with the Company, or (B) a trade
journalist or publication to write or publish favorable information
about the Company or its products.
(b) Each Selling Stockholder severally represents and warrants to, and
agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by such Selling Stockholder on such Closing
Date hereunder; and upon the delivery of and payment for the Offered
Securities on each Closing Date hereunder the several Underwriters
will acquire valid and unencumbered title to the Offered Securities to
be delivered by such Selling Stockholder on such Closing Date.
(ii) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement,
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the Initial Registration Statement conformed in all respects to the
requirements of the Act and the Rules and Regulations and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration
Statement conformed, or will conform, in all respects to the
requirements of the Act and the Rules and Regulations, did not
include, or will not include, any untrue statement of a material fact
and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (C) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conform, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included,
each Registration Statement and the Prospectus will conform, in all
respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act
and the Rules and Regulations, neither of such documents will include
any untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The two preceding sentences apply
only to the extent that any statements in or omissions from a
Registration Statement or the Prospectus are based on written
information furnished to the Company by such Selling Stockholder
specifically for use therein.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim
against such Selling Stockholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
(iv) (A) Such Selling Stockholder has reviewed the Registration
Statement and the representations and warranties of the Company
contained in this Section 2 and has no reason to believe that such
representations and warranties are not true and correct and (B) the
sale of the Offered Securities by such Selling Stockholder pursuant
hereto is not prompted by any information concerning the Company or
any of its subsidiaries which is not set forth in the Prospectus or
any supplement thereto.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and each Selling Stockholder
agree, severally and not jointly, to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company and
each Selling Stockholder, at a purchase price of $[ ] per share, that
number of Firm Securities (rounded up or down, as determined by CSFBC and Bear,
Xxxxxxx & Co., Inc. ("BSCI") in their discretion, in order to avoid fractions)
obtained by multiplying [ ] Firm Securities in the case of the Company
and the number of Firm Securities set forth opposite the name of such Selling
Stockholder in Schedule A hereto, in the case of a Selling Stockholder, in each
case by a fraction the numerator of which is the number of Firm Securities set
forth opposite the name of such Underwriter in Schedule B hereto and the
denominator of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold by
the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under Custody Agreements made with
8
LaSalle Bank National Association, as custodian ("Custodian"). Each Selling
Stockholder agrees that the shares represented by the certificates held in
custody for the Selling Stockholders under such Custody Agreements are subject
to the interests of the Underwriters hereunder, that the arrangements made by
the Selling Stockholders for such custody are to that extent irrevocable, and
that the obligations of the Selling Stockholders hereunder shall not be
terminated by operation of law, whether by the occurrence of any event or, in
the case of a trust, by the death of any trustee or trustees or the termination
of such trust. If any such trustee or trustees should die, or if any other such
event should occur, or if any of such trusts should terminate, before the
delivery of the Offered Securities hereunder, certificates for such Offered
Securities shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death or other event or termination had
not occurred, regardless of whether or not the Custodian shall have received
notice of such death or other event or termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by wire transfer to an account at a
bank acceptable to CSFBC and BSCI and specified by the Company in writing and by
each of the Selling Stockholders as set forth in the Custody Agreement executed
by such Selling Stockholders at the office of Xxxxxx Xxxxxx & Xxxxxxx, at
[ ] A.M., New York time, on [ ], 2002, or at such other time
not later than seven full business days thereafter as CSFBC, BSCI and the
Company determine, such time being herein referred to as the "First Closing
Date". For purposes of Rule 15c6-1 under the Exchange Act, the First Closing
Date shall be the settlement date for payment of funds and delivery of
securities for all the Offered Securities sold pursuant to the offering. The
certificates for the Firm Securities so to be delivered will be in definitive
form, in such denominations and registered in such names as CSFBC and BSCI
request and will be made available for checking and packaging at the office of
the Transfer Agent and Registrar for the Securities in New York, New York at
least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC and BSCI given to the
Company and the Selling Stockholders from time to time not more than 30 days
subsequent to the date of the Prospectus, the Underwriters may purchase all or
less than all of the Optional Securities at the purchase price per Security to
be paid for the Firm Securities. The Selling Stockholders agree, severally and
not jointly, to sell to the Underwriters the respective numbers of Optional
Securities obtained by multiplying the number of Optional Securities specified
in such notice by a fraction the numerator of which is the number of shares set
forth opposite the names of such Selling Stockholders in Schedule A hereto under
the caption "Number of Optional Securities to be Sold" and the denominator of
which is the total number of Optional Securities (subject to adjustment by CSFBC
and BSCI to eliminate fractions). Such Optional Securities shall be purchased
from each Selling Stockholder for the account of each Underwriter in the same
proportion as the number of Firm Securities set forth opposite such
Underwriter's name bears to the total number of Firm Securities (subject to
adjustment by CSFBC and BSCI to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection
with the sale of the Firm Securities. No Optional Securities shall be sold or
delivered unless the Firm Securities previously have been, or simultaneously
are, sold and delivered. The right to purchase the Optional Securities or any
portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice
by CSFBC and BSCI to the Company and the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
and BSCI but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Custodian will
deliver the Optional Securities being purchased on each Optional Closing Date to
the Representatives for the accounts of the several Underwriters, at the office
of Xxxxxx Xxxxxx & Xxxxxxx, against payment of the purchase price therefor in
Federal (same day) funds by wire transfer to an account at a bank acceptable to
CSFBC and BSCI and specified by the Company in writing and by each of the
Selling Stockholders as set forth in the Custody Agreement executed by such
Selling Stockholders at the above office of Xxxxxx
9
Xxxxxx & Xxxxxxx. The certificates for the Optional Securities being purchased
on each Optional Closing Date will be in definitive form, in such denominations
and registered in such names as CSFBC and BSCI request upon reasonable notice
prior to such Optional Closing Date and will be made available for checking and
packaging at the office of the Transfer Agent and Registrar for the Securities
in New York, New York at a reasonable time in advance of such Optional Closing
Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company agrees with the several Underwriters and the Selling Stockholders that:
(a) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement, the Company
will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) of Rule 424(b) not later than the
earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement.
The Company will advise CSFBC and BSCI promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior
to 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by CSFBC and BSCI.
(b) The Company will advise CSFBC and BSCI promptly of any
proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the
Initial Registration Statement, the Additional Registration Statement
(if any) or the Prospectus and will not effect such amendment or
supplement without CSFBC's and BSCI's consent; and the Company will
also advise CSFBC and BSCI promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of
the institution by the Commission of any stop order proceedings in
respect of a Registration Statement and will use its reasonable best
efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, any event occurs as a result
of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material
fact 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 to comply with the Act,
the Company will promptly notify CSFBC and BSCI of such event and will
promptly prepare and file with the Commission, at its own expense, an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance. Neither CSFBC's nor
BSCI's consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to
its securityholders an earnings statement covering a period of
10
at least 12 months beginning after the Effective Date of the Initial
Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions
of Section 11(a) of the Act. For the purpose of the preceding
sentence, "Availability Date" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement (six of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Offered Securities is required to
be delivered under the Act in connection with sales by any Underwriter
or dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC and BSCI
reasonably request. The Prospectus shall be so furnished on or prior
to 3:00 P.M., New York time, on the business day following the later
of the execution and delivery of this Agreement or the Effective Time
of the Initial Registration Statement. All other such documents shall
be so furnished as soon as available. The Company will pay the
expenses of printing and distributing to the Underwriters all such
documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC and
BSCI reasonably designate and will continue such qualifications in
effect so long as required for the distribution, provided that in
connection therewith the Company will not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction.
(g) For a period of 180 days after the date of the Prospectus,
the Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to, any
additional shares of its Securities or securities convertible into or
exchangeable or exercisable for any shares of its Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of CSFBC and
BSCI, provided that the foregoing shall not apply to (i) issuances of
Securities pursuant to the exercise of an option or warrant or the
conversion of a security outstanding on the date of the Prospectus and
the issuance of Securities in connection with the exchange of Pacer
Logistics, Inc. Exchangeable Preferred Stock as described in the
Registration Statement and Prospectus, (ii) the issuance of options
under the Company's existing stock option plans described in the
Prospectus, (iii) the issuance of Securities (or options, warrants or
convertible securities in respect thereof) in connection with a bona
fide merger or acquisition transaction, provided that the Securities
(or such options, warrants and convertible securities) so issued are
subject to the terms of a lock-up letter having provisions that are
substantially the same as the lock-up letters described in Section
6(i) of this Agreement, and (iv) the filing by the Company with the
Commission of any Registration Statement on Form S-8 and (ii) the sale
to the Underwriters of the Firm Securities to be sold by the Company
hereunder.
(h) The Company and each of the Selling Stockholders agree with
one another and with the several Underwriters that (a) the Company
will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Offered Securities under the
Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters
and dealers; (ii) the cost of producing this Agreement, the closing
documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the
Offered Securities; (iii) all fees and expenses in connection with
listing the Offered Securities on the Nasdaq Stock Market's National
Market System; (iv) the filing fees incident to any required review by
the NASD of the terms of the sale of the Offered Securities; (v) the
cost of preparing stock certificates;
11
(vi) the cost and charges of any transfer agent or registrar; (vii)
the fees and expenses of one counsel for the Selling Stockholders;
(viii) the fees and expenses of the Attorneys-in-Fact and the
Custodian; (ix) travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the
Offered Securities; and (x) all other costs and expenses incident to
the performance of its and each Selling Stockholder's obligations
hereunder which are not otherwise specifically provided for in this
paragraph; and (b) each of the Selling Stockholders will pay the
following: (i) any fees and expenses of its counsel if it should
choose to use separate counsel from the one referred to in clause
(a)(vii) of this paragraph and (ii) its pro rata share of all expenses
and taxes incident to the sale and delivery of the Offered Securities
to be sold by such Selling Stockholder to the Underwriters hereunder.
In connection with clause (b)(ii) of the preceding sentence, CSFBC and
BSCI agree to pay any New York State stock transfer tax, and such
Selling Stockholder agrees to reimburse CSFBC and BSCI for associated
carrying costs if such tax payment is not rebated on the day of
payment and for any portion of such tax payment not rebated. It is
understood, however, that the Company shall bear, and the Selling
Stockholders shall not be required to pay or to reimburse the Company
for, the cost of any other matters not directly relating to the sale
and purchase of the Shares pursuant to this Agreement, and that except
as provided in this paragraph, and Sections 7 and 9 hereof, the
Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, stock transfer taxes on resale of any of
the Offered Securities by them, and any expenses for any "tombstone"
advertisement placed in connection with the sale of the Offered
Securities.
(i) Each Selling Stockholder agrees, for a period of 180 days
after the date of the Prospectus, not to offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, any
additional shares of the Securities of the Company or securities
convertible into or exchangeable or exercisable for any shares of
Securities, enter into a transaction which would have the same effect,
or enter into any swap, hedge or other arrangement that transfers, in
whole or in part, any of the economic consequences of ownership of the
Securities, whether any such aforementioned transaction is to be
settled by delivery of the Securities or such other securities, in
cash or otherwise, or publicly disclose the intention to make any such
offer, sale, pledge or disposition, or enter into any such
transaction, swap, hedge or other arrangement, without, in each case,
the prior written consent of CSFBC and BSCI, on behalf of the
Underwriters, provided that the foregoing shall not apply to (i)
Securities acquired by such Selling Stockholder in the open market
from and after the date of the Prospectus; (ii) any transfer of
Securities or any securities convertible into or exercisable or
exchangeable for Securities (A) as a bona fide gift or gifts, (B) as a
distribution to partners, members or shareholders of such Selling
Stockholder that are affiliates of such Selling Stockholder or (C)
pursuant to a sale of 100% of the outstanding Securities of the
Company (including, without limitation, in connection with a tender
offer for such Securities or by way of merger of the Company with
another person) to a third party or group of third parties that are
not affiliates of the Company; and (iii) the sale of Securities to the
Underwriters pursuant to this Agreement; provided that (x) in the case
of any transfer or distribution pursuant to clause (ii)(A) or (B),
each transferee, donee or distributee, as applicable, agrees in
writing to be bound by the terms of a lock-up letter having provisions
that are substantially the same as the provisions of this Section 5(i)
and shall confirm that it has not engaged in any conduct since the
date of this Agreement which would have constituted a breach or
violation of the terms of this Section 5(i) had such transferee, donee
or distributee, as applicable, been an original party to this
Agreement, (y) in the case of any transfer or distribution pursuant to
clause (ii)(A), no filing by any party (donor, donee, transferor or
transferee) under Section 16(a) of the Exchange Act shall be required
or shall be made voluntarily in connection with such transfer or
distribution (other than a filing on a Form 5 made after the
expiration of the 180 day period referred to above) and (z) in the
case of clause (ii)(C), the third party or group of third parties
agree in writing to be bound by the restrictions set forth in this
clause 5(i) until such time as such third party or group of third
parties have acquired 100% of the outstanding Securities of the
Company. In addition, each Selling Stockholder agrees that, without
the prior written consent of each of CSFBC and BSCI, on behalf of the
Underwriters, it will not, during the period commencing on the date
hereof and ending 180 days after the date of the Prospectus, make any
demand for or exercise any right with respect to, the registration of
any Securities or any security convertible into or exercisable or
exchangeable for the Securities.
12
(j) In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent
required by the NASD or the NASD rules from sale, transfer,
assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement.
The Company will direct the transfer agent in writing to place stop
transfer restrictions upon such securities for such period of time.
The Designated Underwriter will notify the Company in writing as to
which Participants will need to be so restricted. The obligations of
the Company pursuant to this paragraph are subject to the receipt of
such notice from the Designated Underwriter.
(k) The Company will pay all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Shares
Program and stamp duties, similar taxes or duties or other taxes, if
any, incurred by the underwriters in connection with the Directed
Share Program. Furthermore, the Company covenants with the
Underwriters that the Company will comply with all applicable
securities and other applicable laws, rules and regulations in each
foreign jurisdiction in which the Directed Shares are offered in
connection with the Directed Share Program.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of PricewaterhouseCoopers LLP confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to
the effect that:
(i) in their opinion the financial statements and schedules
examined by them and included in the Registration Statements
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review
of interim financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on the
unaudited financial statements included in the Registration
Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
13
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations or any material
modifications should be made to such unaudited financial statements
for them to be in conformity with generally accepted accounting
principles;
(B) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
three business days prior to the date of this Agreement, there was any
change in the capital stock or any increase in short-term indebtedness
or long-term debt of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated net current assets
or stockholders' equity, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(C) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the latest
available income statement read by such accountants there were any
decreases, as compared with the corresponding period of the previous
year, in consolidated net sales or net operating income in the total
or per share amounts of consolidated income before extraordinary items
or net income;
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information contained
in the Registration Statements (in each case to the extent that such dollar
amounts, percentages and other financial information are derived from the
general accounting records of the Company and its subsidiaries subject to
the internal controls of the Company's accounting system or are derived
directly from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in agreement
with such results, except as otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statements is subsequent to the execution and delivery of this
Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective
amendment to be filed shortly prior to its Effective Time, (ii) if the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement but the Effective Time of the
Additional Registration Statement is subsequent to such execution and
delivery, "Registration Statements" shall mean the Initial Registration
Statement and the additional registration statement as proposed to be filed
or as proposed to be amended by the post-effective amendment to be filed
shortly prior to its Effective Time, and (iii) "Prospectus" shall mean the
prospectus included in the Registration Statements.
(b) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 P.M., New York time, on the date
of this Agreement or such later date as shall have been consented to by
CSFBC and BSCI. If the Effective Time of the Additional Registration
Statement (if any) is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
14
10:00 P.M., New York time, on the date of this Agreement or, if earlier,
the time the Prospectus is printed and distributed to any Underwriter, or
shall have occurred at such later date as shall have been consented to by
CSFBC and BSCI. If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement, the Prospectus
shall have been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to such Closing Date,
no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Selling Stockholder, the Company or
the Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a majority
in interest of the Underwriters including the Representatives, is material
and adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any change in
U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the judgment of a
majority in interest of the Underwriters including the Representatives, be
likely to prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary market or in
respect of dealings in the secondary market; (iv) any material suspension
or material limitation of trading in securities generally on the New York
Stock Exchange or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (v) any banking moratorium
declared by U.S. Federal or New York authorities; (vi) any major disruption
of settlements of securities or clearance services in the United States; or
(vii) any attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, any declaration of war by Congress
or any other national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including the
Representatives, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment
for the Offered Securities.
(d) The Representatives shall have received opinions, each dated such
Closing Date, of:
(1) X'Xxxxxxxx LLP, special counsel for the Company, to the effect
that:
(i) the Company is duly qualified to transact business and
is in good standing in each jurisdiction listed on a schedule to
such opinion;
(ii) each Significant Subsidiary (as defined in Rule 1-02
under Regulation S-X promulgated by the Commission) of the
Company is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
requisite power and authority to own its property and to conduct
its business as described in the Prospectus (it being understood
that the foregoing opinion with respect to any Significant
Subsidiary incorporated under the laws of a jurisdiction other
than the States or New York or Delaware may be delivered by local
counsel directly to the Underwriters) and is duly qualified to
transact business and is in good standing in each jurisdiction
listed on a schedule to such opinion;
15
(iii) all of the issued shares of capital stock of each Significant
Subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable (it being understood that the foregoing
opinion with respect to any Significant Subsidiary incorporated under the
laws of a jurisdiction other than the States or New York or Delaware may be
delivered by local counsel directly to the Underwriters) and are owned of
record directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, except for liens granted under the Credit
Agreement;
(iv) the execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement and the Custody
Agreement will not contravene any provision of (a) any applicable United
States law or law of the State of New York or, (b) any agreement or other
instrument binding upon the Company or any of its subsidiaries and known to
such counsel that is material to the Company and its subsidiaries, taken as
a whole, or (c) any judgment, order or decree of any governmental body,
agency or court of the United States or the State of New York having
jurisdiction over the Company or any subsidiary and known to such counsel;
and no consent, approval, authorization or order of, or qualification with,
any governmental body or agency of the United States or the State of New
York is required for the performance by the Company of its obligations
under this Agreement or the Custody Agreement, except for (a) such
consents, approvals, authorizations, orders or qualifications as would not
adversely affect the Underwriters and as would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, (b) such as
have been obtained or made under the Act and the Exchange Act and (c) such
consents, approvals, authorizations, orders or qualifications as may be
required (i) by the NASD, (ii) under state securities or Blue Sky laws in
connection with the purchase and distribution of the Offered Securities by
the Underwriters or (iii) under the federal or provincial laws of Canada or
under the laws of any other foreign jurisdiction in which the Offered
Securities may be offered or sold;
(v) the statements (A) in the Prospectus under the captions
"Management-- Stock Option Plans," "Management-- Employment Agreements,"
"Certain Relationships and Related Transactions-- Arrangements with APL
Limited, One of Our Stockholders, and its Affiliates," "-- Administrative
Services Agreement," "-- Information Technology Outsourcing and License
Agreement," "-- Stacktrain Services Agreement," "-- TPI Chassis Sublet
Agreement," "-- Equipment Supply Agreement," "--Non-Competition Agreement,"
"-- Primary Obligation and Guaranty Agreement," "-- Tax Sharing Agreement
with Coyote," "-- Management Agreement with Apollo," "-- Restrictions on
Transactions with Affiliates" (excluding the first paragraph therein),
"Description of Certain Indebtedness," "Shares Eligible for Future Sale
(second paragraph only)," "Material Federal Income Tax Consequences to
Non-U.S. Holders of Common Stock" and "Underwriting" and (B) in the
Registration Statement in Items 14 and 15, in each case insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present in all material respects
the information called for with respect to such legal matters, documents
and proceedings and fairly summarize the matters referred to therein;
(vi) the Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be required to register as an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended;
(vii) such counsel do not know of any legal or governmental
proceedings required to be described in a Registration Statement or the
Prospectus which are not described as required or of any contracts or
documents of a character required to be described in a Registration
State-
16
ment or the Prospectus or to be filed as exhibits to a Registration
Statement which are not described and filed as required; and
(viii) the Initial Registration Statement was declared effective under
the Act as of the date and time specified in such opinion, the Additional
Registration Statement (if any) was filed and became effective under the
Act as of the date and time (if determinable) specified in such opinion,
the Prospectus either was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date specified
therein or was included in the Initial Registration Statement or the
Additional Registration Statement (as the case may be), and, to the best of
the knowledge of such counsel, no stop order suspending the effectiveness
of a Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and Regulations;
such counsel have no reason to believe that any part of a Registration
Statement or any amendment thereto, as of its effective date or as of such
Closing Date, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; or that the Prospectus or any
amendment or supplement thereto, as of its issue date or as of such Closing
Date, contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
such counsel may state that their opinion and belief is based on their
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but is without independent check or
verification except as stated; it being understood that such counsel need
express no opinion as to the financial statements or other financial data
contained in the Registration Statements or the Prospectus;
and (2) Bass, Xxxxx & Xxxx PLC, special Tennessee counsel for the Company
to the effect that:
(i) the Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Tennessee, has the
corporate power and corporate authority under Tennessee law to own its
property and to conduct its business as described in the Prospectus;
(ii) the information regarding the authorized capital stock of the
Company described under "Description of Capital Stock" in the Prospectus
has been reviewed by such counsel and is a fair and accurate summary
thereof in all material respects and the capital stock of the Company
conforms as to legal matters in all material respects to such description;
(iii) the shares of capital stock of the Company issued and
outstanding prior to the issuance of the Offered Securities have been duly
authorized and are validly issued, fully paid and non-assessable;
(iv) the Offered Securities to be sold by the Company have been duly
authorized and, when issued and delivered against payment therefor in
accordance with the terms of this Agreement, will be validly issued, fully
paid and non-assessable, and the issuance of such Offered Securities is not
subject to any preemptive or other similar rights arising under the
Company's Second Amended and Restated Charter or the Tennessee Business
Corporation Act;
17
(v) this Agreement has been duly authorized by all necessary corporate
action on the part of the Company and has been executed and delivered by
the Company;
(vi) the execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not violate
any provisions of (a) the Second Amended and Restated Charter or Second
Amended and Restated By-Laws of the Company or (b) applicable Tennessee
law; and no consent, approval, authorization or order of, or qualification
with, any Tennessee governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, except
such as may be required by the securities or Blue Sky laws of Tennessee in
connection with the offer and sale of the Offered Securities; and
(vii) the statements in the Prospectus in the first paragraph under
the caption "Certain Relationships and Related Transactions--Restrictions
on Transactions with Affiliates," insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present in all material respects the information called for
with respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein.
(e) The Representatives shall have received an opinion, dated the
Closing Date, of each of X'Xxxxxxxx LLP, special counsel to Coyote Acquisition
LLC and Coyote Acquisition II LLC, [______], special counsel to Pacer
International Equity Investors LLC and [______], special counsel to DB Capital
Investors L.P., to the effect that:
(i) immediately prior to such Closing Date, such Selling Stockholder
was the sole registered owner of the Offered Securities to be sold on such
Closing Date by such Selling Stockholder under this Agreement, free and
clear of all liens, encumbrances, equities or claims, and has the corporate
or partnership power and authority to sell, assign, transfer and deliver
the Offered Securities to be sold by such Selling Stockholder hereunder;
(ii) assuming (1) the Underwriters purchase the Offered Securities to
be sold by such Selling Stockholder without notice of any adverse claim
(within the meaning of Section 8-105 of the Uniform Commercial Code as
currently in effect in the State of New York (the "NYUCC")), (2) the
Underwriters make payment therefor as provided herein and in the Custody
Agreement, (3) such Offered Securities are delivered to the Underwriters in
accordance with the provisions of the Custody Agreement and (4) the
Underwriters obtain control of such Offered Securities (within the meaning
of Section 8-106 of the NYUCC), the Underwriters will acquire all of the
Selling Stockholder's rights and interest in the Offered Securities sold by
such Selling Stockholder free of any adverse claim (within the meaning of
Section 8-102(a)(1) of the NYUCC);
(iii) no consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court of the United States or the
States of New York or Delaware is required to be obtained or made by such
Selling Stockholder for the consummation of the transactions contemplated
by the Custody Agreement or this Agreement in connection with the sale of
the Offered Securities sold by such Selling Stockholder, except for (a) any
such consent, approval, authorization, order or qualification which has
been obtained and is in full force and effect, (b) such as have been
obtained or made under the Act and the Exchange Act and (c) such consents,
approvals, authorizations, orders or qualifications as may be required (i)
by the NASD, (ii) under state securities or Blue Sky laws in connection
with the purchase and distribution of the Offered Securities by the
Underwriters or (iii) under the federal or provincial laws of Canada or
under the laws
18
of any other foreign jurisdiction in which the Offered Securities may be
offered or sold;
(iv) the execution, delivery and performance of the Custody Agreement
and this Agreement and the consummation of the transactions therein and
herein contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or any court
of the United States, the State of New York having jurisdiction over such
Selling Stockholder or any of its properties or, as applicable, the General
Corporation Law of the State of Delaware, the Limited Liability Company Act
of the State of Delaware or the Delaware Revised Uniform Limited
Partnership Act or any agreement or instrument known to such counsel to
which such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the properties of such Selling
Stockholder is subject, or the charter or by-laws (or other organizational
documents) of such Selling Stockholder;
(v) the Power of Attorney and related Custody Agreement with respect
to such Selling Stockholder has been duly authorized, executed and
delivered by such Selling Stockholder and constitute valid and legally
binding obligations of such Selling Stockholder enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and
(vi) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Selling Stockholder.
(f) The Representatives shall have received from Xxxxxx Xxxxxx & Xxxxxxx,
counsel for the Underwriters, such opinion or opinions, dated such Closing Date,
with respect to the incorporation of the Company, the validity of the Offered
Securities delivered on such Closing Date, the Registration Statements, the
Prospectus and other related matters as the Representatives may require, and the
Selling Stockholders and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such
matters. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx may rely as to the
incorporation of the Company and all other matters governed by Tennessee law
upon the opinion of Bass, Xxxxx & Xxxx PLC referred to above.
(g) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true and
correct; the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of subparagraphs (1)
and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of
the applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any Underwriter;
and, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
19
(h) The Representatives shall have received a letter, dated such
Closing Date, which meets the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection will
be a date not more than three days prior to such Closing Date for the
purposes of this subsection.
(i) On or prior to the date of this Agreement, the Representatives
shall have received lockup letters from each of the executive officers,
directors and stockholders of the Company.
(j) The Custodian will deliver to CSFBC and BSCI a letter stating that
they will deliver to each Selling Stockholder a United States Treasury
Department Form 1099 (or other applicable form or statement specified by
the United States Treasury Department regulations in lieu thereof) on or
before January 31 of the year following the date of this Agreement.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC and BSCI together may in their
sole discretion waive on behalf of the Underwriters compliance with any
conditions to the obligations of the Underwriters hereunder, whether in respect
of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any who controls such Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, 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
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, 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 for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; and provided, further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus if the Company had previously furnished copies thereof to such
Underwriter.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act (collectively with the Designated Underwriter, the "Designated Entities"),
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) (i) caused
by any untrue statement or alleged untrue statement of a material fact contained
in any material prepared by or with the consent of the Company for distribution
to Participants in connection with the Directed Share Program or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the
20
statements therein not misleading; (ii) caused by the failure of any Participant
to pay for and accept delivery of Directed Shares that the Participant agreed to
purchase; or (iii) related to, arising out of, or in connection with the
Directed Share Program, other than losses, claims, damages or liabilities (or
expenses relating thereto) that are finally judicially determined to have
resulted from the bad faith or gross negligence of the Designated Entities.
(b) The Selling Stockholders jointly and severally will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person who controls such Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, 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
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, 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 for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that a Selling Stockholder shall only be subject to such
--------
liability to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission is based upon information provided by such Selling
--------
Stockholder or contained in a representation or warranty given by such Selling
Stockholder in this Agreement or the Custody Agreement; and provided, further,
that the liability under this subsection of each Selling Stockholder shall be
limited to an amount equal to the aggregate gross proceeds after underwriting
commissions and discounts, but before expenses, to such Selling Stockholder from
the sale of Securities sold by such Selling Stockholder hereunder.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, and each Selling Stockholder, and each person, if any, who
controls such Selling Stockholder within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities to which the Company or such Selling Stockholder may become subject,
under the Act or otherwise, 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
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in 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 reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and each Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the fourth paragraph under the caption
"Underwriting" and the information contained in the sixth, fifteenth and
sixteenth paragraphs under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section
or Section 9 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 subsection (a), (b) or (c) above or Section 9, 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 otherwise than under subsection (a), (b) or (c) above or
Section 9. 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 therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified
21
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section or Section 9, as the case may be, for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
Notwithstanding anything contained herein to the contrary, if indemnity may be
sought pursuant to the last paragraph in Section 7 (a) hereof in respect of such
action or proceeding, then in addition to such separate firm for the indemnified
parties, the indemnifying party shall be liable for the reasonable fees and
expenses of not more than one separate firm (in addition to any local counsel)
for the Designated Underwriter for the defense of any losses, claims, damages
and liabilities arising out of the Directed Share Program, and all persons, if
any, who control the Designated Underwriter within the meaning of either Section
15 of the Act of Section 20 of the Exchange Act. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action 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 (i) settlement includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party. In the event the indemnifying party does
not assume the defense of any action brought against an indemnified party, the
indemnifying party shall not, in connection with any one such action or
proceeding or separate but substantially similar actions or proceedings arising
out of the same general allegations, be liable for the fees and expenses of more
than one separate firm of attorneys at any time for all indemnified persons,
except to the extent that local counsel, in addition to regular counsel, is
required in order to effectively defend against such action or proceeding,
unless (i) the indemnifying party has agreed to pay such fees and expenses or
(ii) an indemnified party reasonably determines that there may be conflicting
interests between such indemnified party and other indemnified parties in
conducting the defense of such action, including situations in which there are
one or more legal defenses available to such indemnified party that are
different from or in addition to those available to other indemnified parties.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities 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 and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company and the Selling Stockholders bear to the total underwriting discounts
and commissions received by the Underwriters in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities 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 Section 11(f) of the Act)
shall be entitled to contribution from any person who
22
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations and not joint. The Selling
Stockholders' obligations in this subsection (e) to make contribution payments
are several and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section or Section 9 shall be in addition to any liability which the
Company and the Selling Stockholders may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter or the QIU (as hereinafter defined) within the meaning of the Act;
and the obligations of the Underwriters under this Section shall be in addition
to any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company and the Selling Stockholders within the
meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obli gated to purchase on such Closing Date, CSFBC and
BSCI may make arrangements satisfactory to the Company and the Selling
Stockholders for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by such
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFBC and BSCI, the Company and the Selling
Stockholders for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Stockholders, except as provided in Section 10 (provided that if
such default occurs with respect to Optional Securities after the First Closing
Date, this Agreement will not terminate as to the Firm Securities or any
Optional Securities purchased prior to such termination). 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.
9. Qualified Independent Underwriter. The Company hereby confirms that at
its request Bear, Xxxxxxx & Co. Inc. has without compensation acted as
"qualified independent underwriter" (in such capacity, the "QIU") within the
meaning of Rule 2710 of the Conduct Rules of the National Association of
Securities Dealers, Inc. in connection with the offering of the Offered
Securities. The Company will indemnify and hold harmless the QIU against any
losses, claims, damages or liabilities, joint or several, to which the QIU may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon the QIU's acting (or alleged failing to act) as such "qualified independent
underwriter" and will reimburse the QIU for any legal or other expenses
reasonably incurred by the QIU in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers 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, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or
23
reimbursed by them pursuant to Section 5 and the respective obligations of the
Company, the Selling Stockholders, and the Underwriters pursuant to Section 7
and the obligations of the Company pursuant to Section 9 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv), (v), (vi) or (vii) of Section 6(c), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory
Group and c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X.
00000, Attention: Senior Managing Director, Equity Syndicate Department, or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at 0000 Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxxxx X. Xxxxxxxx, or, if sent to the Selling Stockholders or any of them,
will be mailed, delivered or telegraphed and confirmed, in the case of (i)
Coyote Acquisition LLC and Coyote Acquisition II LLC, to [_____]; (ii) Pacer
International Equity Investors LLC, to [_____]; and (iii) DB Capital Investors
L.P., to [_____]; provided, however, that any notice to an Underwriter pursuant
to Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
13. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC and BSCI will be binding upon all the Underwriters. [Xxxxxx Xxxxxx] and
[Xxxxxx X. Xxxxx] will act for the Selling Stockholders in connection with such
transactions, and any action under or in respect of this Agreement taken by
[Xxxxxx Xxxxxx] or [Xxxxxx X. Xxxxx] will be binding upon all the Selling
Stockholders.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
24
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
----------------------------------------------
[Insert name or names of Selling Stockholders]
PACER INTERNATIONAL, INC.
By
--------------------------------------------
[Insert title]
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, XXXXXXX & CO. INC.
DEUTSCHE BANK SECURITIES INC.
X.X. XXXXXX SECURITIES INC.
UBS WARBURG LLC
BB&T CAPITAL MARKETS, a DIVISION of XXXXX & XXXXXXXXXXXX, INC.
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
----------------------------------------
[Insert title]
25
SCHEDULE A
Number of
Number of Optional
Firm Securities Securities to
Selling Stockholder to be Sold be Sold
------------------- ---------- -------
Coyote Acquisition LLC....................
Coyote Acquisition II LLC.................
Pacer International Equity Investors LLC..
DB Capital Investors L.P..................
Total................................
------------- --------------
============= ==============
SCHEDULE B
Number of
Firm Securities
Underwriter to be Purchased
-------------------------------------------------- ---------------
Credit Suisse First Boston Corporation..............
Bear, Xxxxxxx & Co. Inc.............................
Deutsche Bank Securities Inc........................
X.X. Xxxxxx Securities Inc..........................
UBS Warburg LLC.....................................
BB&T Capital Markets, a division
of Xxxxx & Xxxxxxxxxxxx, Inc........................
Total..................... -----------------
=================
